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

(P FILED

No. 06-1614 AUG -1 3 2007

SSS, Or CE OPnee

LERK

SUPREME COURT, U.S.

IN THE

Supreme Court of the Anited States

POOH BAH ENTERPRISES, INC., ef al.,

Petitioners,

Vv.

CiTY OF CHICAGO, et al.,

Respondents.

a

On Petition for Writ of Certiorari to the

Supreme Ceurt of Illinois

BRIEF FOR RESPONDENTS IN OPPOSITION

MARA S. GEORGES

Corporation Counsel

of the City of Chicago

BENNA RUTH SOLOMON

Deputy Corporation Counsel

MYRIAM ZRECZNY KASPER

Chief Assistant Corporation

Counsel

JANE ELINOR NOTZ *

Assistant Corporation Counsel

30 N. LaSalle Street, Suite 800

Chicago, Illinois 60602

(312) 744-7764

* Counsel of Record Attorneys for Respondents

AMARTH, NEMO LAE IONGART SE OM BAER BRR CRAKS AR MEL EN MNES ARTNET.DE SPORT EGE Bi TRE SRP i A EI

WitSON-EPES PRINTING CO., INC. - (202) 789-0096 -— WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Whether this Court’s review is warranted. given that

the Ilinois Supreme Court applied settled law to hold that a

Chicago ordinance prohibiting nude and seminude dancing at

liquor-licensed establishments is subject to intermediate scru-

tiny because the ordinance was aimed not at suppressing ex-

pression but at combating the potentially harmful secondary

effects created when sexually explicit entertainment is com-

bined with alcohol.

2. Whether this Court's review is warranted. given that

the I[linots Supreme Court applied settled law to hold that the

challenged ordinance satisfies intermediate scrutiny because

Chicago relied on evidence that is “reasonably believed to be

relevant” for demonstrating a connection between strip clubs

that serve alcohol and an increase in crime.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

CASES | Page

Alameda Books, Inc. v. City of Los Angeles, 222

FS TE COE, DOD hicsiicberictsstcncivcendantarens 24

American Show Bar Series, Inc. v. Sullivan

County, 30 S.W.3d 324 (Tenn. Ct. App. 2000)... 10, 22

Artistic Entertainment, Inc. v. City of Warner

Robins, 223 F.3d 1306 (1 1th Cir. 2000)............ 10, 22

Baby Dolls Topless Saloons v. City of Dallas,

295 F.34 471 (Sth Cir. 2002) .......scccscssssscesesssese 25

Barnes v. Glen Theater, Inc., 501 U.S. 560

CF Dich sos bidanilinstihvickaje des ietintonieatencasedanmabsiiban 11, 16

Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d

FT Cs PE Dirt nadvconnclignestodbietinbatiaedbicees passim

Blue Canary Corp. v. City of Milwaukee, 251.

FSO TELE TO CE BODE vcs cicerisecisisccciicrnnsorise 19

Boos v. Barry, 485 U.S. 312 (1988) .......ccecceeeees 12

Bronco’s Entertainment, Inc. v. Charter Town-

ship of Van Buren, 421 F.3d 440 (6th Cir.

SOND isicsccsh nsacwaiconclaiebinistapbueaicceaietebaneanatliaiaainevoks 22

BZAPS, Inc. v. City of Mankato, 268 F.3d 603

CO ER OED i iscSsi ricseclonisateishercsebcdtnaiainteans 10, 25

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

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

NR FP a dictisivcn csracthsdsaeatiesasasnavesidomiomiacchtin weess 15

California v. LaRue, 409 U.S. 109 (1972)......... 10, 11,19

Center for Fair Public Policy v. Maricopa

County, 336 F.3d 1153 (9th Cir. 2003).............. 18

City of Erie v. Pap’s A.M. 529 U.S. 277

Ce iiriisaidlicciss ssmanseintnaasinseainaansenicaucaniatia 11, 12, 18, 22

City of Los Angeles v. Alameda Books, Inc., 535

i Mee UNITED shiva cicits cassis haa ainiacasiebaneaeniesies passim

City of Newport v. lacobucci, 479 U.S. 92

pA ai nisinnenidesiartiscsackecuiine endaiunsanasanedaaats 10, 11

7

TABLE OF AUTHORITIES— Continued

Page

City of Renton v. Playtime Theaters, Inc.. 475

Blo Rh ihre ol Ce RET Pee Teas erent of tap re oparet passim

Department of Alcoholic Beverage Control vy.

Aecoholic Beverage Control Appeals Board.

121 Cal. Rptr. 2d 729 (Cal. Ct. App. 2002)... 10. 19, 22

Ditla vy. Town of Hallie. V85 F.3d 823 (7th Cir.

PME Dai siatcekciuiesbecin danbx sda danas revlesbedaie bss utvekinianes ovsites 18

El Maroceo Cluh, Inc. v. Richardson, 746 A.2d

rae Se BUN Pains) ces abeandunhidenystdncnmusgducaenerane Gy ee

Encore Videos, Inc. v. City of San Antonio, 330

PSM tee COE UN, OI Noone svindpiensavhasaypiendcstavant ao

Flanigan’y Enterprises. Inc. vy. Fulton County,

ee Fe UO ULE BOON Vicodin ck cccikemdeasinss caw ae

44 Liguormart, Inc. vo Rhode Island, 317 U.S.

UN None icdcasie tat ens Assan, dahl paions iota 11.16.17

Gammoh vy. City of La Habra, 3935 F.3d 1114 (9th

Re UE hao astute datas th 404 Gains Cavin catuRewke pn ea nae J

G.Q. Gentleman's Quarters, Inc. v. City of Luke

Ozark, 83 S.W.3d 98 (Mo. Ct. App. 2002)........ 13

Glover v. United States. 331 U.S. 198 (2001)... 26

GAL Enterprises, Inc. v. Town of St. Joseph, 330

Re S e 6 FUME cD GEIB cs, cis pceisnsa oeeanicameetisesess a4

Gaoldrush Hv. Citv of Marietta, 482 S.F.2d 347

on UR bit AOE SRR URE VORS arse REP ARS ont hate Pye tr 10. 20

Meidman v. South Salt Lake City. 348 F.3d 1182

PSM Ws SONI Baia sco ss cs iva acces gpavon rience Rab.

Hlusions-Dallas Private Club. tac. v. Steen, 482

PRA ste ON UE WANs OED isos bsicnsecansaccanana emesis Fe ES,

Jake's. Lid. v. City of Coates. 284 F.3d 884 (8th

SAN GROG Gas viivlasichassuiedbesinincs Gate bala meres ohbaba Ba.

MceCrothers Corp. vo Cite. of Mandan. 728

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BEST AVAILABLE COPY

vi

TABLE OF AUTHORITIES—Continued

Page

New York State Liquor Authority v. Bellanca,

ek Ghats FA EMBED setts icsercienicncheciiniamenddshesi 10, 11,19

181 South Inc. v. Fischer, 454 F.3d 228 (3d Cir.

DE iciaacisvis hades Eeactaidantates asd occa ietaeess 9,19

Peek-a-Boo Lounge of Bradenton, Inc. v. Man-

atee County, Fla., 337 F.3d 1251 (11th sp

PR tice cansan chlustessbiesadicdvinia sactinsementoomuovicssis 17

Purple Orchid, Inc. v. Pennsylvania State Police,

$13: A.20 801 (Pa. 2002)... .ccecsesvosceeseseee 10, 20, 22, 25

Restaurant Ventures v. Lexington-Fayette Urban

County Government, 60 S.W.3d 572 (Ky. Ct.

Pe IE eso vilis cis Scensitinnadiiceshcheseostecsetnumediulegic 22

R.V.S., LLC v. City of Rockford, 361 F.3d 402

CR a aise di tigsc mchstanustpinncatilencciaiecoees 23

Sammy’s of Mobile, Ltd. v. City of Mobile, 140

Poe Pe GE, CIID vcscsrckeptoscesasysaiovivates 10, 17, 20

Singleton v. Wulff, 428 U.S. 106 (1976)................ 26

United States v. Playboy Entertainment Group,

BRE, SEO IIS CROP svesicainanssnssessnsenchoossscese 12

Urmanski v. Town of Bradley, 613 N.W.2d 905

(Wisc. Ct. App..2000)................. PESTA INASP 10, 20

White River Amusement Pub, Inc. v. Town of

Hartford, 481 F.3d 163 (2d Cir. 2007).............. 17

Wise Enterprises, Inc. v. Unified Government of

Athens-Clarke County, 217 F.3d 1360 (11th

Ss a i teticiccetinsdh aiiccsnnntasinsiineiarusdasiebigesdiseinienadonn 10

Young v. American Mini Theaters, Inc., 427 U.S.

cB 2 RERARMRTEES "SEER Gee ae a one Ree COR Ora 11-12, 21

STATUTE, RULE, AND ORDINANCE

I Bact Wis ID ce sdicich ccscticiecabeiinhcdcdseveidahindeseavenueenilae 7

FIP Ce EE COED exsinocsbivtotensinncevonsssancoeann’ 3

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

IN THE

Supreme Court of the Anited States

No. 06-1614

POOH BAH ENTERPRISES. INC.. ef a/..

Petitioners.

Vv.

CITY OF CHICAGO, et al...

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

BRIEF FOR RESPONDENTS IN OPPOSITION

STATEMENT

Pooh Bah Enterprises. Ine. ("Pooh Bah”). holds a Chicago

liquor license entitling it to serve alcohol at its nightclub.

located at 1531 North Kingsbury Street in the City of

Chicayo. Pet. App. 2. [In addition to serving alcohol. this so-

called “gentleman's club” provides sexually oriented enter-

tainment featuring female dancers who remove their clothes

while they dance. Ad at 2 & n.1. Chicago does not prohibit

nude and seminude dancing at clubs within the City but does

prohibit the sale of alcohol in combination with such dancing.

Id. at 46. Pooh Bah’s club ts the only commercial establish-

ment that combines the sale of liquor by the drink and dane-

ing by seminude women. /d. at 5. Alcohol sales are a major

source of the club’s income, which is substantial. /d@ at 7. In

2000. the club’s gross revenue was $7 million. /hid By

2

comparison, strip clubs in Chicago that do not serve alcohol

had annual revenues of only $1-2 million. Jbid.

Pooh Bah’s entertainment has been the same since 1993,

when these proceedings first began. Pet. App. 10. Patrons sit

at tables, from where they can order drinks while watching

dancers perform. /d. at 7. The dancers take off their clothes

while dancing to prerecorded music, id. at 6-7, and, by the

end of the striptease, the only item of clothing the dancers ©

still have on is a thong, id. at 9.' The thong does not cover

the dancers’ buttocks. /bid. The dancers are topless except

for a skin-colored latex makeup substance on their nipples

and areolae. Jbid. At most, the latex merely obscures the

naturally darker color of that portion of the dancers’ breasts;

the breasts otherwise appear nude. [bid.

The dancers perform either on a stage or by doing “table

dances.” Pet. App. 6-8. A table dance is a brief striptease

performed at the customer’s table for an additional fee. /d. at

8. During table dances, the dancers may lick their fingers,

rub and fondle their breasts, and expose their pubic region,

including their labia. Tr. 90-93, 133, 160-61, 180, 1405-06,

1425. In addition, although club policy forbids physical

contact with customers, the record discloses that dancers have

sucked on customers’ earlobes and kissed customers on the

cheek during table dances. Pet. App. 8.

In 1993, Chicago’s Liquor License Control Commission

(“LLCC”) commenced proceedings to revoke Pooh Bah’s

' A thong—also called a “T-bar’—is a bikini bottom that covers the

pubic area, with a small waistband and a thin strip of material in the back

that descends downwards through the cleft of the buttocks where it

connects to the front piece through the legs. Pet. App. 9.

? There was extensive testimony that the latex was applied only to the

nipples and areolae, and not to the sides and lower part of the breasts, and,

moreover, that the color and texture of the nipples and areolae were

visible through the latex. Pet. App. 9-10.

Pe

liquor and other municipal licenses based on charges that the

dancers at its club exposed their buttocks and breasts in

violation of Chicago's Municipal Code. Pet. App. 2. 10-11.

The Code prohibits a liquor-licensed establishment from

permitting “any live act. demonstration. dance or exhibition

. Which exposes to public view . . . genitals. pubic hair,

buttocks ... or [a]ny portion of the female breast at or below

the areola.” Municipal Code of Chicago, Ill. § 4-60-140(d)

(1999) (“the aleohot ban”). The Code further provides that.

for purposes of the alcohol ban. these body parts are con-

sidered to be exposed to public view if they are “uncovered or

fare] less than completely and opaquely covered.” /d On

October 15, 1993. after an evidentiary hearing. the LLCC

revoked Pooh Bah’s licenses. Pet. App. 11. Pooh Bah ap-

pealed to the License Appeal Commission, which affirmed

and denied rehearing. [hid

Pooh Bah sought judicial review pursuant to the Illinois

Administrative Review Law, see 735 [LCS 3/3-101 (2004)

et seg. Pet. App. Il.) Revocation of Pooh Bah’s municipal

licenses Was stayed during this review. as Well as the resolu-

tion of a lawsuit Pooh Bah had filed seeking a declaration that

the alcohol ban is unconstitutional. /d at [t-12. These

proceedings were protracted, and Pooh Bah operated its strip

club throughout the 1990s. /d at 13. Meanwhile. in 1999,

after further investigation of activities at Pooh Bah’s club, the

City filed a lawsuit alleging that the club constituted a public

nuisance and seeking injunctive relief and tines. /hid. The

administrative review and nutsance cases were consolidated

in the circuit court and went to trial.

At trial. the City presented 15 witnesses. and Pooh Bah

presented 13. The witnesses testified not only about the en-

tertainment presented at Pooh Bah’s club. but also about the

effect that establishments like Pooh Bah’s may have on the

4

surrounding community.’ In particular, the City presented the

testimony of Police Officer Roger O’Brien, who had served

in the City’s 18th District Vice Unit since 1979. Pet. App. 6.

Officer O’Brien stated that the 18th District covers the Rush

Street area in Chicago, and that during the late 1970s and

mid-1980s, there were approximately 12 or 13 strip clubs that

served alcohol located in that area. /bid. At that time, pros-

titutes could be found on every corner in the Rush Street area,

and waitresses and dancers frequently. solicited customers for

sex inside the clubs. /bid. In the 1980s, the City engaged in

anti-prostitution efforts that ultimately resulted in the closure

of these establishments. Jbid. According to Officer O’Brien,

there has been an 80% decrease in prostitution arrests in the

Rush street area since the strip clubs selling alcohol were shut

down. /bid.

Thomas Smith, Assistant Commissioner for Zoning in the

City’s Department of Planning and Development, testified for

the City, and stated that, in his opinion, there is a relationship

between sexually oriented businesses and an increase in

crime. Pet. App. 33-34. In formulating this opinion, Assis-

tant Commissioner Smith relied on his experience as an urban

planner, and also on research he had undertaken when he was

preparing recommendations to Chicago’s City Council for

amendments to the City’s ordinances relating to so-called

adult businesses. /d. at 33-34, 39. Assistant Commissioner

Smith’s research disclosed that, historically, the Chicago

neighborhoods in which these businesses—including strip

clubs where liquor was served—were located had significant

> Contrary to petitioners’ contention, Pet. 9, the City did not “aban-

don[]” its claim that the dancers’ breasts are not opaquely covered during

the trial. Rather, the City produced extensive evidence that the dancers’

skimpy latex coverings left their areolae visible. Pet. App. 9-10. Respon-

dents’ position was and is that the latex covering does not comply with the

ordinance because it does not disguise either the color or the texture of the

areola, and is not applied to the breasts at or below the areola.

ae

5

problems with criminal activity. particularly prostitution. /cd.

at 33. Assistant Commissioner Smith also consulted with

groups such as the American Planning Association and the

National Institute of Municipal Officers, and obtained and

reviewed numerous studies conducted by other cities. includ-

ing Indianapolis. Los Angelgs. Minneapolis. Phoenix. and St.

Paul. /ed at 34. These studies found that incidents of sex and

property crimes Were significantly greater in areas with

sexually oriented businesses, compared to areas without these

businesses. /hid. In particular, some studies identified a

specific relationship between the combination of alcohol sales

and adult uses and the incidence of neighborhood crime.

lhid.

Dr. Allen Kodish. a psychiatrist and a faculty member at

the University of Chicago. testified for the City and discussed

the effects of combining alcohol with sexual stimulation. Pet.

App. 38. He stated that alcohol facilitates sexual and aggres-

sive impulses: impairs social judgment: and, when combined

with sexual stimulation. produces an effect “associated with

an increase in violent sexual acting out. acts of criminal be-

havior.” /hid. Dr. Kodish explained that the combination of

aeohol and sexual stimulation overrides the normal brakes or

checks people place on themselves to avoid inappropriate or

dangerous behavior. Tr. 871. Thus. drinking alcoho! while

viewing naked or nearly naked dancers increases the likeli-

hood that a person will act on various anti-social impulses.

such as touching. screaming, and engaging in fights or other

risky behavior. Pet. App. 38.

The City also adduced testimony from Dr. Wesley Skogan.

a protessor of political science at Northwestern University

and a member of the University’s Institute tor Policy Re-

search. Pet. App. 38. Dr. Skogan discussed a number of

studies and articles showing that establishments that serve

alcohol attract a significant amount of crime. /d. at 38-39.

He explained that such establishments create an opportunity

6

for crime by bringing the potential victim and criminal

together. /d. at 38. The victims become move vulnerable be-

cause of alcohol’s disorienting effects, creating an attractive

situation for potential offenders. Jd. at 39. One of the studies

showed that the combination of retail alcohol sales and adult

uses created a higher incidence of crime than retail alcohol

sales or adult uses operating in isolation. /bid.

Pooh Bah cross-examined the City’s witnesses and pre-

sented its own witnesses, including experts. Pierre DeVise

(“DeVise”), a self-employed consultant retained by Pooh

Bah, testified that he was not aware of any studies showing a

cause-and-effect relationship between liquor establishments

featuring semi-naked dancers and crime. ‘Pet. App. 41. But

he admitted that a correlation has been shown to exist -be-

tween sexually oriented establishments that serve alcohol and

crime.. Jbid- DeVise stated that the study from Minneapolis

(relied upon by Assistant Commissioner Smith) was excellent

and by far one of the best he had seen. Tr. 2813. That study

showed such businesses to be significantly related to higher

crime rates. Tr. 2814.

Peter Girandola, an assistant professor of psychology at the

University of Kentucky, also testified for Pooh Bah. Pet. -

App. 41. He opined that there are no studies showing a

direct, positive relationship between viewing sexual stimuli

and sexual “acting out” behavior in men, ibid., but, during

cross-examination, he acknowledged that studies had shown

mild increases in sexual arousal in men with low levels of

alcohol when they viewed erovic slides, Tr. 2484. Professor

Girandola also agreed that at least one study had shown

higher numbers of murders, rapes, robberies, assaults, and

burglaries in areas with taverns or lounges than in areas

without such establishments, Tr. 2654-57, and, moreover, that

his own studies had confirmed that alcohol consumption is

related to a higher level of aggression, Pet. App. 41; that a

person who had been drinking might take risks that he

J

otherwise would not take. Tr. 2697-98: and that some men

might get more Violent upon drinking alcohol. Tr. 2699-700.

Rolf Campbell (*Campbell”). a planning and zoning con-

sultant for Pooh Bah. gave his opinion that the club did not

have a “negative impact on the orderly development of the

immediately surrounding properties.” Pet. App. 41. During

cross-examination. however. Campbell admitted that he had

no Opinion about the relationship between land use and

crime. nor had he conducted research on the relationship

between either alcohol or sexually oriented businesses and

crime. Lhid.

Based on this and other evidence. the trial court issued a

memorandum opinion and order in January 2001, denying the

City’s request for injunctive relief and declaring the alcohol

ban unconstitutional because it infringed on protected rights

of expression. Pet. App. 133-54. In particular. the trial court

held that although the City is allowed “to enact ordinances

that combat secondary effects.” and. moreover, that “the City

Was successful in. . . positing the possibility that those

secondary effects could hypothetically exist” in this case, the

alcohol ban nevertheless did not pass constitutional muster

because “the record [was] devoid of any proof of the

existence of even potentially harmful secondary effects.” /d.

at 147-48. On appeal. the Hlinois Appellate Court held that

the trial court had misapplied the law. noting that the First

Amendment does not require the City “to show results from a

specific study around the vicimty of the Club” to justify its

secondary effects rationale: instead. the City could rely on

any evidence it “reasonably believes . 2. is relevant to the

problem the City wishes to address.” Ad at 113. Because the

The trial court also held that the alcohol ban is impermissibly vague

and overbroad. Pet. App. 148-50. These rulings were reversed on appeal.

id at | 16-20, and the Ulinots Supreme Court upheld that reversal. ic/ at

48-60. Petitioners do not challenge these rulings in their petition. and,

accordingly. such challenge is watved. See Sup. Ct R. 14a)

8

City had provided such evidence, the appellate court reversed

the judgment of the trial court and upheld the ordinance. /d.

at 124. The Illinois Supreme Court affirmed, id. at 63, and

denied rehearing, id. at 64.

ARGUMENT

Petitioners identify two reasons they claim this Court’s

review is warranted. First, petitioners contend that thefe is

uncertainty among the state and federal courts about the

appropriate level of First Amendment scrutiny that is appli-

cable where, as here, a local government bans nude and

seminude dancing at liquor-licensed establishments to combat

the potentially harmful secondary effects of combining sex-

ually explicit entertainment and alcohol. Second, petitioners

insist that, regardless of the applicable level of scrutiny, the

City’s ordinance violates the First Amendment because the

trial court found no evidence of negative secondary effects at

Pooh Bah’s club—even though that court acknowledged that

“those secondary effects could hypothetically exist.” Pet.

App. 147. The Illinois Supreme Court applied settled law and

correctly resolved both issues. Accordingly, both because the

court’s judgment fully comports with this Court’s decisions

and because this case raises no issue on which judicial

decisions conflict, the petition for writ of certiorari should

be denied.”

1. “Since 1993, Pooh Bah has sold alcoholic drinks to its

patrons while providing entertainment consisting of dancing

by women wearing nothing more than thongs and latex-

> In the “Questions Presented,” petitioners also suggest a third ques-

tion: whether the “First and Fourteenth Amendments” require a remand

to the trial court “for further evidence.” Pet. (i). We do not address due

process separately because petitioners’ one-paragraph argument in support

of this claim, see id. at 23, can only be described as cursory. In any event,

as we explain in Part 2.c, petitioners waived this argument when they

failed to make it before the Illinois Supreme Court.

9

covered nipples and areolae. Pet. App. 10. Notably. Chi-

cago’s Municipal Code does not prohibit women trom danc-

ing for customers in this state of undress. /hid. Throughout

the period at issue here. establishments have been permitted

to operate in Chicago that provide entertainment by dancers

Who wear less. and. indeed. even appear in a state of nudity.

Id. at 10. 31. Thus. as the Hlinois Supreme Court discerned.

Chicago's ordinance “does not... forbid any speech or

expressive conduct... . This ordinance merely prohibits

{nude or seminude dancing] from being combined with the

sale and consumption of alcohol.” /d. at 54. Had the City

wanted to suppress the expressive conduct associated with

such performances. surely it would have directed its regu-

lation to the dancing itself. But the alcohol ban merely regu-

lates the sale of liquor at sexualty oriented establishments.

ai. On just this basis. numerous courts have rejected con-

stitutional challenges akin to the one petitioners forward. up-

holding laws like section 4-60-140(d) because they regulate

liquor sales and not the dancers” attire. much less the con-

tent of their expression. For example. in /S/ South Inc. v.

Fischer, 454 F.3d 228 (3d Cir. 2006). the Third Circuit held

that a state law prohibiting “lewdness or immoral activity” on

liquor-licensed premises —and applied to bar sexually explicit

dancing—"is not a restriction of erotic expression, but a

prohibition of nonexpressive conduct (1.e.. serving and con-

suming alcohol) on premises where such expression takes

place.” /d. at 234 (internal quotations and citation omitted).

Similarly. the Seventh Cireuit explained in Ben's Bar, Inc. v

Village of Somerset. 316 F.3d 702 (7th Cir. 2003), that “t]he

yuestion is not whether the Village ean require nude dancers

to Wear More attire than pasties and Crstrings. but whether it

ean prohibit Sexually Oriented Businesses like Ben's Bar

from selling alcoholic beverages...) Ad at 708. Myriad

other cases are to the same effect. rejecting a First: Amend-

ment challenge to a state or local law banning nude and semi-

nude dancing in hquor-licensed establishments. See. eg.

10

G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631,

636-40 (7th Cir. 2003); BZAPS, Inc. v. City of Mankato, 268

F.3d 603, 607-08 (8th Cir. 2001); Artistic Entertainment, Inc.

v. City of Warner Robins, 223 F.3d 1306, 1308-09 (11th

Cir. 2000) (per curiam); Wise Enterprises, Inc. v. Unified

Government cf Athens-Clarke County, 217 F.3d 1360, 1363-

65 (lith Cir. 2000); Sammy’s of Mobile, Lid. v. City of

Mobile, 140 F.3d 993, 996-99 (11th Cir. 1998); McCrothers

Corp. v. City of Mandan, 728 N.W.2d 124, 134-40 (N.D.

2007); Purple Orchid, Inc. v. Pennsylvania State Police, 813

A.2d 801, 806-13 (Pa. 2002); El Marocco Club, Inc. v.

Richardson, 746 A.2d 1228, 1234-38 (R.I. 2000); Goldrush II

v. City of Marietta, 482 S.E.2d 347, 355-57 (Ga. 1997);

Department of Alcoholic Beverage Control v. Alcoholic

Beverage Control Appeals Board, 121 Cal. Rptr. 2d 729, 734-

41 (Cal. Ct. App. 2002); American Show Bar Series, Inc. v.

Sullivan County, 30 $.W.3d 324, 333-37 (Tenn. Ct. App.

2000); Urmanski v. Town of Bradley, 613 N.W.2d 905, 907-

11 (Wisc. Ct. App. 2000).° -

ii. These holdings flow inexorably from this Court’s

cases, which have consistently upheld laws restricting nude or

seminude dancing on premises licensed to serve alcoholic

beverages. See City of Newport v. lacobucci, 479 U.S. 92, 95

(1986) (per curiam); New York State Liquor Authority v.

Bellanca, 452 U.S. 714, 718 (1981) (per curiam); California

v. LaRue, 409 U.S. 109, 118-19 (1972).’ At the same time,

° The argument forwarded by petitioners’ amici flows from the prop-

osition that the First Amendment analysis “is the same whether alcohol is

involved or not.” Brief Amici Curiae in Support of Petition for Writ of

Certiorari at 2. This is incorrect. Laws regulating liquor sales at sexually

oriented businesses do_not restrict expression. For this reason, we de-

clined to consent to the filing of the amicus brief.

” These cases reflect the view that the broad powers of the states to

regulate the sale of liquor pursuant to the Twenty-First Amendment

outweigh any First Amendment interest in nude and seminude dancing,

and states therefore have the authority to ban such dancing as a part of

1]

the Court has held that sexually explicit entertainment is

entitled to only diminished protection under the First Amend-

ment. See. e.g... City of Erie vo Pap’s AML. 529 U.S. 277,

289 (2000) (plurality opinion) (nude dancing “falls only

within the outer ambit of the First Amendment's protection”):

Barnes v. Glen Theater. Inc... 501 U.S. 560. 566 (1991)

(plurality opinion) (same). Indeed, “at least with respect to

businesses that purvey sexually explicit materials. zoning

ordinances designed to combat the undesirable secondary

effects of such businesses are to be reviewed under the

standards applicable to ‘content-neutral’ time. place. and

manner regulations.” City of Renton v. Plavtime Theaters,

Inc... 475 U.S. 41. 49 (1986) (footnote omitted).

In Renton, for example. the Court upheld an ordinance pro-

hibiting theaters offering sexually explicit films from locating

in most areas of the city. The Court concluded that even

though this ordinance treated such theaters “differently from

other kinds of theaters.” 475 U.S. at 47. it was a valid time.

place. and manner restriction because the ordinance was

“aimed not at the content of the films .. . but rather at the

secondary effects of such theaters on the surrounding com-

munity.” fd. (emphasis in original). See also houng v. Ameri-

their liquor licensing programs. See luacohucci. 479 U.S. at 95: Bellanca.

452 U.S. at 728: LaRue, 409 US. at 118-19. In 44 Liguormart, Inc. v.

Rhode Island. 517 U.S. 484 (1996). the Court altered its view of the inter-

play between the First and Twenty-First amendments, holding for the first

time that “the Twenty-First Amendment does not qualifv the constitu-

tional prohibition against laws abridging the freedom of speech embodied

in the First Amendment.” // at S16. Notably. however. although the

Court disavowed the reasoning employed in LaRue and its progeny. the

Court also made clear that. “[e]ntirely apart from the [wenty-First

Amendment.” state and local governments have “ample power to prohibit

the sale of alcoholic beverages at inappropriate locations.” such as strip

clubs. /dé at S'S. Accordingly. the Court held that its “analysis in LaRue

would have led to precisely the same result if t had placed no reliance on

the | wenty-First Amendment.” /d

12

can Mini Theaters, Inc., 427 U.S. 50, 70-71 & n.34 (1976)

(plurality opinion) (City of Detroit could “legitimately use the

content of [sexually explicit movies] as the basis for placing

them in a different classification from other motion pic-

tures.”). Thus, Renton establishes that laws targeting busi-

nesses offering sexually oriented expression because of its

“undesirable secondary effects” will be treated as content

neutral and subject to intermediate rather than strict scrutiny.

475 U.S. at 48-49. The Court reaffirmed this approach as

recently as City of Los Angeles v. Alameda Books, Inc., 535

U.S. 425 (2002), where it applied the intermediate scrutiny of

the time, place, and manner test to a zoning ordinance

applicable only to sexually explicit entertainment.*

* Although a majority of the Court in Alameda Books did not agree on

a single rationale for its decision, there is a majority for intermediate

scrutiny. See 535 U.S. at 438 (plurality opinion); id. at 448 (Kennedy, J.,

concurring in the judgment).

Petitioners’ cases, Pet. 15, do not require more rigorous scrutiny. In

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000),

the statute was not directed at secondary effects, but “focuse[d] only on

the content of the speech and the direct impact that speech has on its list-

eners.” /d. at 811 (emphasis in original) (citation and internal quotations

omitted). The Court expressly distinguished cases like Renton, where the

regulation is aimed at adverse secondary effects. See id. at 815.

Boos v. Barry, 485 U.S. 312 (1988), is even farther afield. That case

concemed “political speech in a public forum,” id. at 321 (emphasis in

original)}—not sexually explicit dancing. And, as in Playboy, the law was

not justified by reference to secondary effects; it was enacted solely to

“protect[] the dignity of foreign diplomatic personnel.” /d. at 322.

Moreover, the statement petitioners cite, see Pet. 15, did not command a

majority of the Court, and even these Justices agreed that the law at issue

did not fall within Renton because it was not aimed at combating negative

secondary effects. See id at 320-21 (O’Connor, J., joined by Scatia, J.,

and Stevens, J.).

Finally, in Pap’s, the Court expressly reaffirmed the holding in Renton

that laws regulating businesses offering sexually oriented entertainment

are considered content neutral and subject to intermediate scrutiny if

13

Petitioners have identified only two cases—//lusions-Dal-

las Private Club, Inc. v. Steen, 482 F.3d 299 (3th Cir. 2007).

and G.Q. Gentleman's Quarters, Inc. v. City of Lake Ozark,

83 S.W.3d 98 (Mo. Ct. App. 2002)—in which a restriction on

sexually explicit dancing at liquor-licensed establishments

was struck down. But even these cases recognize that inter-

mediate scrutiny governs laws directed at negative secondary

effects. The court in //usions-Dallus invalidated the law at

issue because it Munked this test. See 482 F.3d at 311-15. In

G.Q.. the court found “no evidence” that the challenged ordi-

nance was aimed at combating negative secondary effects. 83

S.W. 3d at 103. On that basis only. the court applied strict

rather than intermediate scrutiny. See id Thus. rather than

indicate a conflict. these cases confirm that intermediate

scrutiny applies to a regulation of sexually explicit enter-

tainment based on potentially harmful secondary effects.

iil. The [linots Supreme Court followed this approach to

the letter. The court applied intermediate scrutiny because

the evidence showed that “combating the negative secondary

effects caused by adult entertainment establishments was not

only the predominate motive for the City’s actions, it was the

only motivation.” Pet. App. 35. See also id. at 26 n.12, 31-

36. As the court correctly recognized. this evidence included

the legislative preamble to the 1993 adult use ordinances.

Where Chicago's City Council expressly explained its con-

cerns about the deleterious effects sexually oriented busi-

nesses may have on the surrounding community. /d at

32-33. In addition, the court considered the testimony of

justified by reference to their secondan cifects. See 529 US. at 283, 291

(plurality opinion): «é at 310 (Souter, J.. concurring in part and dissenting

in part). Even the dissenters agreed with the majority on this potnt. See

id. at 319-21 (Stevens, J.. joined by Ginsburg. J., dissenting). Indeed. the

only Justices who diverged trom this view would have upheld the ban on

nude dancing even without a secondary effects justification. See md at

310 (Sealia, J. joined by Phomas, J.. concurring in the judement).

14

Assistant Commissioner Smith, who described his research

into Chicago’s past problems with strip clubs selling alcohol

and the experiences of other municipalities, and his con-

clusion that such clubs are associated with higher crime rates,

id. at 33-34, 39; as well as the testimony of veteran Police

Officer O’Brien, who detailed “the abundance of criminal

activity” associated with these clubs, id. at 39. The court also

reviewed Dr. Kodish’s expert opinion that the combination of

adult entertainment and alcohol “produces an effect asso-

ciated with an increase in violent sexual acting out, acts of

criminal behavior,” id. at 38; and Professor Skogan’s that not

only do liquor establishments attract a significant amount of

crime, ibid., but the combination of retail alcohol sales and

adult entertainment creates an even “higher incidence of

crime than resulted from retail alcohol sales or adult uses

operating in isolation,” id. at 39. Finally, the court noted that

the ordinance does not prohibit nude or seminude dancing

outright; it merely prohibits the sale of alcohol at estab-

lishments that offer such entertainment, id. at 36—proof

enough that the ordinance is not aimed at suppressing ex-

pression but at combating potentially harmful secondary

effects. Given the extensive evidence supporting the City’s

secondary effects rationale, the state court rightly concluded

that it was bound to review the ordinance as a content-neutral

law subject to intermediate scrutiny.

b. For their part, even petitioners do not seem to doubt

that at least some regulations of sexually explicit enter-

tainment are content neutral and subject to intermediate,

rather than strict, scrutiny. Petitioners submit, however, that

“(t]he Court has not yet clarified when a government that has

failed to meet its burden of proof with respect to secondary

effects necessarily must satisfy strict scrutiny ....” Pet. 13.

Petitioners describe two “conflicts” this purported “lack of

guidance” has supposedly “spawned.” /d. at 15. In fact,

petitioners have identified no conflict, but, even if they had,

resolution of that conflict would not change the outcome

15

of this case. Accordingly. there is no issue suitable for this

Court's review.

i. First, petitioners claim there is a divergence in judicial

opinion about whether. to be entitled to intermediate scrutiny.

a defendant must first present evidence that the regulation of

sexually explicit entertainment was aimed at combating po-

tentially harmful secondary effects—or whether intermediate

scrutiny is “presumptive|ly|~ applicable to such regulations.

Pet. 15-16. This “contlict™ does not exist. None of the three

cases pelilioners cite “simply assume[d].~ id. at 15, that in-

termediate scrutiny was applicable to a regulation of sexually

explicit entertainment. In ///usions-Dallas, the court applied

intermediate scrutiny because there was evidence that the law

had been passed to combat negative secondary effects. See

482 F.3d at 308. In Ben's Bar, the challenged ordinance was

accompanied by lengthy legislative findings describing the

lawmakers’ secondary effects rationale. See 316 F.3d at 705.

And in Café 207. Inc. v. St. Johns County. 856 F. Supp. 641

(M.D. Fla. 1994). aff'd. 66 F.3d 272 (11th Cir. 1995), the

court held that intermediate scrutiny was warranted because

of evidence that the lawmakers had considered studies con-

ducted by other localities prior to enacting an anti-nudity

ordinance. See 856 F. Supp. at 645. Equally significant. the

IHinois Supreme Court did not “presumptively” apply inter-

mediate scrutiny in this case. To the contrary. as we have

explained, the court applied intermediate scrutiny because the

City had presented copious evidence concerning the rela-

tionship between alcohol. sexually explicit entertainment. and

crime. Pet. App. 31-40. If there exists a case in which a

court applied intermediate scrutiny absent any evidence of a

secondary effects rationale. that case is an unidentified

outlier. and. moreover. itis not this case.

ii. Petttioners’ second purported “conflict™ concerns the

requirement. articulated by some courts. that a legislature

must support its secondary effects rationale with “pre-enact-

16

ment evidence.” Pet. 17. See also id at 14. This “conflict,”

if it even exists, is irrelevant to the outcome of this case

because the City’s support for its secondary effects rationale

included evidence from the time of enactment. At the outset,

however, petitioners’ view that the City was required to

present “contemporaneous legislative findings . . . to support

the . . . claim that [the ordinance] was intended to combat

secondary effects,” Pet. 14, is incorrect. The Court long ago

established the Constitution does not require “legislative

findings,” when, as here, the “statute’s purpose of protecting

societal order and morality is clear from its text and history.”

Barnes, 501 U.S. at 567-68 (plurality opinion). In this case,

moreover, the alcohol ban could hardly contain “legislative

findings” articulating the Chicago City Council’s secondary

effects rationale. It was enacted before Renton, which first

established that municipalities may regulate adult enter-

tainment establishments in an effort to combat potentially

harmful secondary effects, and before 44 Liquormart, Inc. v.

Rhode Island, 517 U.S. 484 (1996), which first held that the

Twenty-First Amendment did not alone allow regulation of

First Amendment activity. Only after Renton and 44 Liquor-

mart could lawmakers have known that, when regulating

sexually explicit dancing at liquor-licensed establishments,

they should include a legislative history explaining their sec-

ondary effects rationale.

That does not mean the City Council was unaware of the

problems associated with sexually oriented businesses selling

alcohol. As we have explained, Officer O’Brien testified that

the City saw a decline in prostitution after shutting down a

number of establishments that offered liquor and nude

dancing. And Assistant Commissioner Smith testified that he

made recommendations to the City Council regarding further

legislation based on his opinion that there is a relationship

between sexually oriented businesses and an increase in

crime. Although petitioners object, Pet. 14, the Illinois Su-

preme Court rightly relied as well on the preamble to the

17

later-enacted 1993 adult use ordinances as a statement of

legislative purpose. The alcohol ban was part of a “legis-

lative package” adopted to address concerns about the sec-

ondary effects of adult entertainment establishments. Pet.

App. 34. See also id. at 32, 36. All told. the record amply

demonstrates the City Council’s contemporaneous purpose of

combating secondary effects.”

In any event. petitioners’ claim of a conflict with regard to

pre-enactment evidence is largely overstated. Although

petitioners correctly note that some courts have required pre-

enactment evidence of a secondary effects rationale while

other courts have not. the cases where pre-enactment evi-

dence was required reviewed laws adopted after Renton and

44 Liquormart. See White River Amusement Pub. Inc. v.

Town of Hartford. 481 F.3d 163. 165 (2d Cir. 2007) (2002

public indecency ordinance): Peek-a-Boo Lounge of Braden-

fon, Inc. v. Manatee County, Fla.. 337 F.3d 1251. 1253 (11th

Cir. 2003) (1998 zoning ordinance). As we have explained.

before that time. lawmakers could not have known to include

a statement articulating their secondary effects rationale.

Petitioners do not claim a conflict on older laws, much less

Where the reviewing court discerned legislative intent to

regulate because of secondary effects.

” Petitioners nevertheless claim that the legislative history shows that

the alcohol ban was content-based. Pet. 14. As the Illinois Supreme Court

explained. the cited language is not part of the ordinance itself: it is a

generic description of the legislation included by the committee in its

recommendation to the City Council that the ordinance be approved. Pet.

App. 36. Moreover. “even if the commiltee’s views could be imputed to

the city council and even if the language it emploved could be read as

actually referring to the content of conduct that is protected. reference to

content ts not the same as suppression of content.” /Aid (citing Sammy's,

140 F.3d at 998). In any event, if the Hlinois Supreme Court miscon-

ceived the legislative histon. this issue does not warrant the Court's

review, assuming it is even within the Court’s jurisdiction

18

2. Petitioners do not even attempt to identify a conflict

with respect to the second question in the petition. Instead,

petitioners merely disagree with the Illinois Supreme Court’s

determination that the alcohol ban satisfies intermediate

scrutiny. Although the absence of a conflict alone is enough

to deny review of this question, the Illinois Supreme Court’ S

resolution of this issue is wholly correct.

a. After concluding that intermediate scrutiny should

apply, the Illinois Supreme Court evaluated the strength of

the City’s evidence justifying its secondary effects rationale,

including whether evidence offered by Pooh Bah “cast

doubt,” Pet. App. 40, on that rationale. This approach—as

well as the court’s determination that intermediate scrutiny

was satisfied—fully complied with settled law.

In particular, this Court has “consistently held” that, when

regulating erotic entertainment, “a city must have latitude to

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

is required [to support an ordinance].” Alameda Books, 535

U.S. at 451 (Kennedy, J., concurring in the judgment). .

Accordingly, a municipality need only set forth evidence it

“‘reasonably believed to be relevant’ for demonstrating a

connection between speech and a substantial, independent

government interest,” such as the control of potentially ad-

verse secondary effects. /d. at 438 (plurality opinion) (quot-

ing Renton, 475 U.S. at 51-52). Accord, e.g., Center for Fair

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

Cir. 2003) (“The récord here is hardly overwhelming, but it

does not have to be.”); DiMa v. Town of Hallie, 185 F.3d 823,

829 (7th Cir. 1999) (municipality’s “burden of showing that

there is evidence that supports its proffered justification . . . is

not overwhelming”). This includes, but is not limited to,

the experiences of, and studies produced by, other cities, as

well as findings in judicial opinions. See Pap’s, 529 U.S. at

297 (plurality opinion); Renton, 475 U.S. at 50-51. The

evidence merely “must fairly support the municipality’s

19

rationale for its ordinance.” Alameda Books. 535 U.S. at 438

(plurality opinion).

Indeed. a city’s burden is particularly light where. as here.

it seeks to regulate the sale of alcohol at sexually oriented

businesses. This ts because, as the Illinois Supreme Court

recognized. “"[t]hat liquor and sex are an explosive com-

bination’ . . . 1s a proposition so frequently confirmed by

human experience that it can scarcely be questioned.” Pet.

App. 37 (quoting Blue Canary Corp. v. City of Milwaukee,

251 F.3d 1121. 1124 (7th Cir. 2001)). Accord. ¢.g.. Bellanca.

452 U.S. at 718 ("Common sense indicates that any form

of nudity coupled with alcohol in a public place begets

undesirable behavior.”): LaRue, 409 U.S. at 118 (finding the

“conclusion that certain sexual performances and the dis-

pensation of liquor by the drink ought not to occur at

premises that have licenses was not an irrational one”): /4/

South, 454 F.3d at 234 (describing “the “unacceptable social

behavior that so often arises in conjunction with the

combination of erotic entertainment and alcohol”); Ben‘s Bar.

316 F.3d at 708 (noting “the explosive combination of nude

dancing and alcohol consumption”); Department of Alcoholic

Beverage Control, 121 Cal. Rptr. 2d at 736-37 (it is “still

broadly recognized today™ that liquor and sex are an unde-

sirable combination).

Under this minimal standard. the City’s evidence —con-

sisting of testimony about the experiences of other jurts-

dictions as well as Chicago itsell—was more than adequate.

Numerous courts have found similar evidence sufficient to

jusuty ordinances regulaung the combination of sexually

explicit entertainment and alcohol. See. ¢.g.. /8/ South, 454

3d at 250 (state agency relied on “the long-standing judicial

recognition that lewdness or immoral activity in conjunction

with alcoholic beverage consumption can give rise to

unacceptable social behavior’) (internal brackets and quo-

tations omitted): Bern's Bar. 316 F.3d at 725 (village relied on

20

studies done by and experiences of other municipalities and

judicial opinions); Sammy's, 140 F.3d at 997 (city relied on

studies done by and experiences of other municipalities,

judicial opinions, and “wisdom and common sense”);

McCrothers, 728 N.W.2d at 131 (city relied on studies done

by and experiences of other municipalities and judicial

opinions); Purple Orchid, 813 A.2d at 811 (board relied on

experiences of foreign jurisdictions); Goldrush IT, 482 S.E.2d

at 367 (city relied on “the experiences of other cities that the

council members reasonably believed to be relevant to the

problems faced by Marietta”); Urmanski, 613 N.W.2d at 910

{town relied on information provided by the League of

Municipalities and judicial opinions). There is no question

under this unvarying standard that the City set forth evidence

sufficient to justify its secondary effects rationale.

Moreover, the Illinois Supreme Court correctly concluded

that Pooh Bah failed to call that rationale into question. In

particular, Pooh Bah presented no evidence challenging the

veracity of .the historical account presented by Assistant

Commissioner Smith and Officer O’Brien. Instead, Pooh Bah

merely criticized the opinions proffered by the City’s experts.

As the Illinois Supreme Court recognized, however, these

complaints did not undermine the City’s rationale for its

ordinance. Devise actually admitted on cross-examination

that a correlation had been shown to exist between sexually

oriented businesses that serve alcohol and an increased

incidence of crime, while Professor Girandola confirmed that

alcohol consumption is related to a higher level of aggression.

Pet. App. 41. Ag for Campbell, he conceded 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. /bid.

At worst, Pooh Bah’s experts disagreed with the City’s

experts about whether the City’s concerns will be addressed

>|

~

by the enforcement of the ordinance. But a “city must be

allowed a reasonable opportunity to experiment with solu-

tions to admittedly serious problems.” }owag. 427 U.S. at 7)

(plurality opinion). Indeed. “courts should not be in the busi-

ness of second-guessing fact-bound empirical assessments of

citv planners.” Adameda Books. 535 U.S. at 451 (Kennedy.

J. concurring in the judgment). See also id. at 440 (plurality

opinion) (“we must acknowledge that the Los Angeles City

Council ts in a better position than the Judiciary to gather and

evaluate data on local problems”). Thus. “mere differences

of opinion™ are not grounds for invalidating an ordinance.

MeCrothers, 728 N.W.2d at 138: accord. e.g. GAL. 350

F.3d at 639. much less for thts Court’s review of this fact-

specific issue.

b. = Although petitioners identify no conflict on this issue.

they nevertheless argue that this case justifies review because

it presents a “situation” that “[nJone of this Court's prior

cases directly address [sic].~ Pet. 20. that is. “whether a City

regulation of expression may be upheld when a trial court

finds that there Is #0 evidence of harmful secondary effects

emanating from the regulated expressive activity... 2° id. at

19 (emphasis in original). Petitioners” view that the City was

required to present evidence of adverse secondary effects

associated with Pooh Bah’s club itself to enact the alcohol

ban or enforce the ordinance against it is incorrect."

i. As this Court’s cases make clear. an ordinance can be

properly directed at the adverse secondary effects of sexually

explicit entertainment based solely on evidence that those

in auy event, contrary to petitioners’ suggestion. the record ts not

bare on tis point. The testimeny of Pooh Bah’s own witnesses reveals

the pernicious secondary effects of the club itself. On one oceasion, the

police had to be called because a customer “expose[d] his erect penis and

Was stroking it in full view of other patrons and the entertainers.” Pet.

\pp. 8.n.7. The police were also summoned to deal with assaults both

inside and outside of the club. /d/ at 43

Se

secondary effects have been experienced in other cities. A

“city need not conduct new studies or produce evidence

independent of that already generated by other cities to

demonstrate the problem of secondary effects, so long as .

whatever evidence the city relies upon is reasonably believed

to be relevant to the problem that the city addresses.” Pap’s,

529 U.S. at 296 (plurality opinion) (citation and internal

quotations omitted). Accord Renton, 475 U.S. .at 50-52 (ac-

cepting City of Renton’s reliance on the experience of Seattle

as expressed in findings summarized in a prior decision).

Accordingly, the state and federal courts have consistently

_ held that a local government is not required to demonstrate

adverse effects in its particular locality but may consti-

tutionally rely on relevant studies from other areas. For

example, in Ben's Bar,.the court noted that the view that a

local government “may not rely on prior judicial decisions or

the experiences of other municipalities, but instead must

conduct its own studies, at the local level . . . has been

expressly (and repeatedly) rejected by the Supreme Court.”

316 F.3d at 725. Accord, e.g., Bronco’s Entertainment, Inc.

v. Charter Township of Van Buren, 421 F.3d 440, 451 (6th

Cir. 2005); Heidman v. South Sait Lake City, 348 F.3d 1182,

1198 (10th Cir. 2003); Jake’s, Lid. v. City of Coates, 284 F.3d

884, 888 (8th Cir. 2002); Artistic Entertainment, 223 F.3d at

1309; McCrothers, 728 N.W.2d at 129; Purple Orchid, 813

A.2d at 811; Restaurant Ventures v. Lexington-Fayette Urban

County Government, 60 S.W.3d 572, 578 (Ky. Ct. App.

2001); El Marocco, 746 A.2d at 1237-38; Department of

Alcoholic Beverage Control, 121 Cal. Rptr. 2d at 736 n.10;

American Show Bar, 30 S.W.3d at 334.

Petitioners’ cases do not suggest otherwise. Instead, they

address different issues. The problem in Flanigan’'s Enter-

prises, Inc. v. Fulton County, 242 F.3d 976 (11th Cir. 2001),

‘vas that “the county’s own studies negated the very interests

it purportedly sought to prevent.” /d. at 986. Thus, while that

court agreed that “a governmental entity is not required to

perform empirical studies,” it ruled that, “having done so. the

[government] cannot ignore the results.” /bid. In //lusions-

Dallas, the state supported its secondary effects rationale by

referencing various foreign studies, but the district court

excluded the studies, and the state did not challenge the

exclusion on appeal. See 482 F.3d at 313. As the case came

to the Eleventh Circuit then. there was no evidence of

secondary effects. and the court struck down the challenged

law. See ihid. But the court nevertheless noted that “the out-

come could potentially have been different” had there been

studies in the record. /d@ at 315 n.11. And in Encore Videos.

Inc. v. City of San Antonio, 330 F.3d 288 (Sth Cir. 2003), the

court ruled that studies of businesses providing on-site

entertainment could not justify an ordinance restricting the

location of sexually oriented businesses selling videos and

books. which are less likely than on-site businesses to pro-

duce harmful secondary effects. See id. at 294-95. Because

this case presents none of these issues, it cannot conceivably

conflict with petitioners” cases.'!

ii. Petitioners attempt to avoid the settled rule that a

municipality 1s not required to conduct its own studies by

suggesting that there should have been evidence that “the

' Petitioners also claim there exist “marked inconsistencies” in the

Seventh Circuit's approach to the regulation of sexually explicit enter-

tainment. Pet. 25. This claim can be ignored for purposes of granting

review, but itis wrong in any event. The results in Ben's Bur and RS.

LLCO vy. City of Rockford, 361 F.3d 402 (7th Cir. 2004), reflect differences

in the ordinances at issue. Ben's Bur upheld an ordinance that. like the

alcohol ban, prohibited nude and seminude dancing on liquor-licensed

premises. see 316 F.3d at 707-08, while the ordinance in ROIS. prohibited

even clothed dancers from engaging in certain erotic Movements. see 361

F.3d at 404-05. In striking down Rockford’s ordinance, RUS. held that

the city had failed to identify’ evidence “directly relevant to the type of

entertainment that [it] seeks to regulate.” /d at 411. Notably, however.

the court reaffirmed the holding in Ben's Bur that the ordinance chal-

lenged there was valid. See a at 413.

24

additional covering of the buttocks (or sides of breasts) re-

quired by the Chicago Ordinance would have. . . [an] effect

on secondary effects.” Pet. 20. The Court expressly rejected

this type of argument in Alameda Books, which addressed an

ordinance prohibiting multiple entertainment businesses from

operating in the same building. In enacting the ordinance,

Los Angeles primarily relied on a planning department study,

which indicated that crime had grown at a much higher rate in

Hollywood, which had the largest concentration of sexually

oriented establishments in the city, than in the city as a whole.

See 535 U.S. at 435. The Ninth Circuit found that the study

did not reasonably support the inference that a concentration

of operations in the same building produced higher crime

rates. See Alameda Books, Inc. v. City of Los Angeles, 222

F.3d 719, 724-25 (9th Cir. 2000). The Court reversed,

explaining that the court of appeals had erred in requiring the

city to prove that its theory about a concentration of oper-

ations is a “necessary consequence.” 535 U.S. at 437

(plurality opinion) (emphasis deleted). To the contrary, under

Renton, the city need rely only “on any evidence that is

reasonably believed to be relevant for demonstrating a con-

nection between speech and a substantial, independent gov-

ernment interest.” Jd. at 438. See also id. at 449-52 (Ken-

nedy, J., concurring in the judgment) (study relied on by city

satisfies the “reasonably believed to be relevant” standard).

Following this approach, the lower federal courts have uni-

versally dismissed arguments like petitioners’. For example,

in Ben’s Bar, the Seventh Circuit ruled that the village did not

need to present evidence “relating specifically to the effects

. of serving alcohol in establishments offering nude and semi-

nude dancing,” 316 F.3d at 725, or demonstrating that “the

incidental restrictions placed on Ben’s [Bar], over and above

the pasties and G-string requirement, ameliorate any pur-

ported negative secondary effects,” id. at 726. The court

explained that, under established precedents and common

sense, the village’s secondary effects justification “was en-

25

tirely reasonable.” /d. at 726. Accord. ¢.g.. Gammoh vy. City

of La Habra, 395 F.3d 1114. 1127 (9th Cir. 2005); Baby

Dolls Topless Saloons v. City of Dallas, 295 F.3d 471, 481-82

(Sth Cir. 2002): Purple Orchid, 813 A.2d at 811. Indeed. in

BZAPS. the Eighth Circuit rejected an argument similar to

petitioners’ on the ground that no precedent requires a

municipality to obtain research targeting the exact activity it

Wishes to regulate. See 268 F.3d at 606-07. As the court

explained. “We are satisfied that neither the first dmendment

nor Supreme Court precedent require the Citv to do the

impossible.” /d at 607.

i. Petitioners also rely on their view that the City’s jus-

tifications for its ordinance “unraveled” during the litigation.

Pet. 20. See also id. at 21 (describing the so-called “evi-

denuiary failures and shifting rationales”). Contrary to peti-

tioners” suggestion. id. at 20-21. the City never sought to

prove a correlation between strip clubs that serve alcohol and

decreased property values. The City’s position throughout

the trial was that the combination is correlated with crime.

Tr. 3050-51. [tis not unusual for a plainutf. by the time of

trial, to narrow the claims contained in its original pleading.

so the allegation regarding property values in the City’s

complaint ts beside the point. The same ts true of the City’s

determination to focus its appeal not on the trial court's

finding that the City had not sustained its burden of proof

with regard to the prostitution charge. but on that court's

conclusion that the alcohol ban was unconstitutional. Like a

decline in property values, it was not necessary for the City to

prove prostitution. Thus. these trial decistons. in addition

to being fact-bound. do not call into question the Elinots

Supreme Court's determination that Chicago's ordinance

comphies with the First Amendment.

c¢. This same obsession with the vagaries of this. par-

ticular case dooms peuuoners’ argument that upholding the

alcohol ban on this record raises both “a serious due process

26

question under the Fourteenth Amendment,” Pet. 23, and “an

important procedural question of First Amendment litiga-

tion,” id. at 21. These questions have no significance outside

this case. In addition, petitioners failed to forward a due

process argument in their appeal to the Illinois Supreme -

Court, and, accordingly, any such argument is inappropriate

for review by this Court. See, e.g., Glover v. United States, -

531 U.S. 198, 205 (2001); Singleton v. Wulff, 428 U.S. 106,

120 (1976). There is no reason to depart from that rule here.

As for petitioners’ claim of an important First Amendment

issue, it centers on an agreed order entered by the trial court

to provide for immediate appeal of that court’s ruling that the

alcohol ban is unconstitutional. Petitioners believe they were

entitled to a remand by virtue of the agreed order. Pet. 5, 21-

22. The state court’s reading of this order is no basis for this

Court’s review. In any event, as the Illinois Supreme Court

recognized, petitioners’ “sole reason” for requesting a remand

is to “to renew and bolster [their] contention that the ordi-

nance violates constitutional standards.” Pet. App. 63. But

petitioners had a full and fair opportunity to litigate this issue.

At trial, Pooh Bah both cross-examined the City’s witnesses

and presented its own witnesses, including experts, who gave

testimony directed at establishing that the ordinance was not

justified by reference to adverse secondary effects. Peti-

tioners have never identified what relevant evidence they

think they have to present on remand, although we questioned

this in the Illinois Supreme Court. It is not surprising that the

court did not order a remand for evidence never identified.

As far as appears, petitioners seek to present further evidence

questioning the City’s reliance on the secondary effects

rationale. This effort was doomed from the outset because

the City’s burden was merely to identify evidence that it

“reasonably believed to be relevant,” not to prove the wisdom

of its regulation to the trial court. There is surely no reason

for a remand to continue this failed theory.

ee |

» ae

%

27

CONCLUSION

For the preceding reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

MARA S. GEORGES

Corporation Counsel

of the City of Chicago

BENNA RUTH SOLOMON

Deputy Corporation Counsel

MYRIAM ZRECZNY KASPER

Chief Assistant Corporation

Counsel

JANE ELINOR NOTZ *

Assistant Corporation Counsel

30 N. LaSalle Street, Suite 800

Chicago, Illinois 60602

(312) 744-7764

* Counsel of Record Attorneys for Respondents

August 13, 2007