Prologue — XLP Corp. v. Lake County (No. 05-1113)

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

XLP CORPORATION, et ai.,

Petitioners,

v.

THE COUNTY OF LAKE,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS APPELLATE CiRCUIT COURT

FOR THE Second Judicial District

PETITION FOR A WRIT OF CERTIORARI

Wayne B. GIAMPIETRO Luke Lirot

Stitt, Kcein, DADAY, ARETOS Counsel of Record

& GIAMPIETRO, L.L.C. Luke CHARLES Lirot, P.A.

121 South Wilke Road 112 East Street

Suite 500 Suite B

Arlington Heights, IL 60005 Tampa, FL 33602

(847) 590-8700 (813) 221-9533

Counsel for Petitioners

199809 ce

COUNSEL PRESS

(800) 274-3321 © (800) 359-6859

QUESTIONS PRESENTED

Does the confusion and differential interpretation of

this Court’s decision in City of Los Angeles v. Alameda

Books, coupled with the disjointed framework of this

Court's prior fractured decisions in the area of adult

entertainment, result in both First Amendment and Due

Process violations because of the conflicting and

inconsistent evidentiary standards developed in the

Federal Circuits and State Appellate courts?

Does a local government have the unfettered right to

“rely” on out of date and irrelevant pre-enactment

legislative data to impose limits on the operation of First

Amendment protected businesses that would

ultimately result in the demise of the businesses and

the loss of all such protected speech within an entire

urban county, in direct conflict with this Court's

decision in City of Los Angeles v. Alameda Books?

ee

PARTIES TO THE PROCEEDINGPARTIES

TO THE PROCEEDING

The Petitioners, who were Plaintiffs in the trial court,

and Appellants in the Illinois State Apellate Courts, are XLP

Corporation, an Illinois Corporation, Michael Christofalos,

President, d/b/a “Dancer’s,” and Danny Christofalos, d/

b/a/” Baby Dolls.”

The Respondent is the County of Lake, a political

subdivision of the State of Illinois, the Defendant in the trial

court, and the Appellee in the State Appellate forums.

All parties to the proceedings below are parties to this

Petition.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Counsel for the Petitioners

informs this Court that no party corporarte entitiy has any

parent, and no publicly owned company holds any

ownership interest in the corporations.

iti

TABLE OF CONTENTS

Page

CNS TIN ag sv ne'c Bo we ek ba Cees bike i

Parties to the Proceeding FREE EeRDE ERIKA EDR li

Corporate Disclosure Statement ................ ii

Tae OF CO ns a Fes HR ELAS RO iii

tavie of Cited Authorities .. <2. 6.05. ceeds Vv

TRUM. OF PDOOTIOIOER 5 ooo ie i has ee eeeay ix

CPUNRCNN ONO a5 ios ae Sew bs eee ies 1

POTION Fe I Ea Se 1

Constitutional And Statutory Provisions Involved

PE ESD OSS rae Eee OD UE Fe Lee 1

Stabprent of the Cae. os Foi es ie 4 ee 1

A. The Factual Background Supporting Review

Pere Teo erie Yea meer erie way Gare 2

B. The Trial Court’s Erroneous Conclusion

Were Embraced By the Appellate Court

Because There Is No Clarity In What Type

of Evidence May Support What Type o¢

PONG ok ee ere eas - 10

iv

Contents

Reasons for Granting the Petition ...............

I.

II.

The Illinois Appellate Court Decision Is In

Direct Conflict With This Court’s Decision

In City of Los Angeles v. Alameda Books And

Further Aggravates The Existing Split Of

Authority And Confusion Interpreting This

Decision The Seventh Circuit opinion is in

direct conflict with decisions of other circuit

courts on the requirements of Freedman v.

MGTUING oo soa ig reas ae ee ered bs

This Court’s Fractured Decision Have

Created Irreconcilable Conflicts Within The

Federal Citeuit Courts: 2 ei

COMCHISIOR ee ee eee ee

Vv

TABLE OF CITED AUTHORITIES

CASES: tha

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ....passim

Basiardanes v. City of Galveston, 682 F.2d 1203

gaat Op +. REDE MptauPenpe big utp ome ana San pee een tie 19, 20

BGHA, L.L.C., v. City of Universal City, Texas,

PEO BOG SIP tS aes QOD os bos eee sence ees 23

Bigg Wolf Disc. Video Movie Sales, Inc. v. Montgomery

County, 256 F.Supp.2d 385 (D.Md. 2003) ....... 28

Center for Fair Public Policy, et al. v. Maricopa County,

Arizona, 336 F.3d 1153 (9 Cir. 2003) .......... 22

City of Erie v. PAP’s A.M., 529 U.S. 277 (2000) ..... passim

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

aR ot 2 MNES RE Mo apr Aya nama Ate iat ery eat passim

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

CSP Sea 5s eich a eee OEE ee eee passim

Creswill v. Knights of Pythias, 225 U.S. 246 (1912) .. 4

Déja vu of Cincinnati, L.L.C. v. The Union Township

Board of Trustees, 411 F.3d 1153 (6 Cir. 2005)... 29

Encore Videos, Inc. v. City of San Antonio, 330 F.3d

POON RN MU i Pee S ee Sk 23, 24

Fiske v. Kansas, 274 U.S. 380 (1927) .............. 4

Flanigan Enterprises v. Fulton County, Georgia,

BEL Te FPO TE IE, MAN) so 8 po oe open ees 25

vi

Cited Authorities

Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301

(11 Cir. 2003)

Gammoh, et al. v. City of La Habra, 395 F.3d 1114

(9 Cix. 2005)

G.M. Enterprises v. Town of St. Joseph, Wisconsin,

350 F.3d 631 (7" Cir. 2004)

Hammerstein v. Superior Court, 341 U.S. 491 (1951) ...

Heideman, et al. v. South Salt Lake City, 348 F.3d 133

(10 Cir. 2003)

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968)

] & B Entm'’t, Inc. v. City of Jackson, Miss., 152 F.3d

362 (5 Cir. 1998)

JMM Corporation v. District of Columbia, et all.,

378 F.3d 1117 (D.C. Cir. 2004)

Jacobellis v. Ohio, 378 U.S. 184 (1964)

Jolener v. Village of Washington Park, Illinois, 378 F.3d

613 (7 Cir. 2004)

Kentucky Restaurant Concepts, Inc., et al. v. City of

Loutsville, et al., 117 Fed. Appx. 415 (6 Cir. 2005)

Krueger v. City of Pensacola, 759 F.2d 851 (11" Cir.

Page

Vii

Cited Authorities

Page

Lakeland Lounge of Jackson, Inc. v. City of Jackson,

S73 E20 TIO GE NIG EY 0 6s a haa BE ee as 24

Leverett v. City of Pinellas Park, 775 F.2d 1536

(399 Cr TORS) ea hee os Ry ee bod eee 17

LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358

(OP Be) ieee cor eo Os 24

Members of City Council v. Taxpayers for Vincent,

SOG WD. Fe a iv bis wees a pen bene 17

Michigan-Wisconsin Pipeline Co. v. Calvert, 347 U.S.

ROT ALIGN) oe Spek Reo bis Raa s eh eee aa 2

Miller v. California, 413 U.S. 15 (1973) ............ 4

N.W. Enterprises, et al. v. City of Houston, 352 F.3d

162 (OP Ci By a se trae his pec sce nee teers 23

New York v. Ferber, 458 U.S. 747 (1982) ........... 4

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .. 14

Peek-A-Boo Lounge v. Manatee County, 337 F.3d 1251

(11'* Cir. 2003), cert. den. 541 U.S. 988 (2004) ... 4,22,29

Phillips v. Borough of Keyport, 107 F.3d 164 (34 Cir.

ROOT cio ese pode ad ee CO ee pees 18

DOOR a 26

vill

Cited Authorities

Page

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546

1g ep ER DRS IES SN hon peat er rays ed ey ERE aD ee 16

Sterling v. Constantin, 287 U.S. 378 (1932) ........ 4

Sullivan v. Texas, 207 U.S. 416 (1908) ............. 2

Terminello v. City of Passaic, et al., 118 Fed. Appx. 577

OR is hes 1 Sa Lee a Re DMO ES 29

United States v. O’Brien, 391 U.S. 367 (1968) ...... 23, 28

Worldwide Video v. City of Spokane, 368 F.3d 1186

eh NE ec eek eka vs eh een sche ns Coes 27

Young v. American Mini Theatres, Inc., 427 U.S. 50

ee aa on eA VA OGRE Ted Meee ameals 17, 28

Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220

Sy gy 28 Get "5 RRR SES OSS SSeS rc oaia SP Pe 29

ix

TABLE OF APPENDICES

Appendix A — Rule 23 Order Of The Appellate

Court Of Illinois, Second District Dated July 8,

Fg BPEL SEE EAE CEST PON Hae ee een aoe

Appendix B — Order Of The Circuit Court

Of The Nineteenth Judicial Circuit,

Lake County, Illinois Dated And Filed November

yy |. a eatin OR a renee tye el Meet any deme

Appendix C — Order Of The Supreme Court Of

Illinois Denying Petition For Leave To Appeal

ated Deceeniner T, 20 is ise eae ees

Appendix D — Ordinance Amending The Lake

County Adult Use Licensing Ordinance .......

1

OPINIONS BELOW

The Opinion of the Illinois Appellate Court, Second

Judicial District, dated May 26, 2005, and published as

modified on July 8, 2005, 295 Ill.Dec. 329 (Ill. App. 2005) is

reproduced at Appendix A to this Petition. The Order of the-

Circuit Court of the Nineteenth Judicial Circuit,

Lake County, Illinois, dated November 25, 2003 is reproduced

at Appendix B.

JURISDICTION

The Illinois Appellate Court, Second Judicial District,

entered its Opinion on May 26, 2005, and Petitioners filed a

Notice of Intent to File Petition for Leave to Appeal with the

Illinois Supreme Court on June 16, 2005. Petitioners filed said

Petition for Leave to Appeal with the Illinois Supreme Court,

which highest state court declined to exercise discretionary

jurisdiction on December 1, 2005. (App. C). This Court has

jurisdiction pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY -_

PROVISIONS INVOLVED

Constitutional provisions

The First Amendment to the Constitution of the

United States of America provides that “Congress shall

make no law .. . abridging the freedom of speech. . .”

Statutory provisions

The County of Lake adopted a Comprehensive Adult

Entertainment Ordinance, 6:1-15, which regulates every

permutation of the operation of all businesses deemed to

provide “adult entertainment” in the County. The provisions

of that Ordinance are reproduced as Appendix D.

STATEMENT OF THECASE -—

Petitioners, XLF Corporation, an Illinois Corporation,

Michael Christofalos, as President of XLP, d/b/a “ Dancer’s,”

and Danny Christofalos, d/b/a/ “Baby Dolls,” sought a

discretionary appeal from the highest Illinois State Court,

seeking review of the decision of the Appellate Court, Second

Judicial District, affirming the judgment entered by the Circuit

Court of Lake County, Illinois. The Appellate Court, Second

District, rendered its decision on Petitioners’ appeal from the

judgment and order of the Circuit Court, which rejected all

2

assertions of First Amendment violations (all brought

pursuant to 42 U.S.C. Section 1983) resulting from the

imposition of County legislation alleged to be in direct

violation of Plaintiffs’ Federal Constitutional rights, and

resolved all issues in favor of Lake County. In compliance with

Rule 14.1(h), Petitioners state that the issues of “Federal

Question” stature were the core issues in the case from its

inception, as well as the core issues in all appellate review.

The “Federal Questions” formed the basis of all judicial

determinations made in the actions involved.

The decision of the Appellate Court was rendered on

May 26, 2005. No petition for rehearing was filed. That

decision, designated as a Rule 23 Order under Illinois

procedural rules, is reproduced as Appendix A. The

Petitioners’ thereafter filed a Notice of Intent to File Petition

for Leave to Appeal, and subsequently filed their Petition for

Leave to Appeal, which was denied by the Illinois Supreme

Court on December 1, 2005. On the basis that the highest state

court declined discretionary review, the instant Petition for

Writ of Certiorari is directed to the Illinois Appellate Court,

Second Division, in conformity with the directives of 28 U.S.C.,

Section 1257.!

A. The Factual Background Supporting Review

As stated by the Second District Appellate Court

(hereinafter “ Appellate Court”) in their Rule 23 Order:

“In 1998, Lake County enacted an ordinance regulating

adult uses. See Lake County Ordinance 6:1—15 (eff.

February 10, 1998). In response to a court decision that

called into question the constitutionality of the

ordinance (see Wisconsin Vendors, Inc. v. Lake County,

No. 99 —-C—8340 (N.D. Ill. 2003)), it was amended in

2001 (see Lake County Ordinance 6:1 —15 ( eff. October

9, 2001)). The purposes of the ordinance and its

amendment were set forth by the county in preambles

to the two enactments. The preamble to the original

1. See Sullivan v. Texas, 207 U.S. 416 (1908); Hammerstein v. Superior

Court, 341 U. S. 491, 492 (1951); Michigan-Wisconsin Pipeline Co. v. Calvert,

347 U.S. 157, 160 (1954); and Interstate Circuit, Inc. v. Dallas, 390 U.S. €76,

678 n. 1 (1968).