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

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## Record

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

## Text

(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

mS es Pe a oO | 9 | A RC co a a See

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0566%3A5. Public record. Not legal advice.