Illinois village must produce some evidence of negative secondary effects to adopt adult entertainment regulation

by Gary Taylor

Foxxxy Ladyz Adult World, Inc., v. Village of Dix
(Federal 7th Circuit Court of Appeals, March 10, 2015)

[I love the spelling of these places.  Apparently Xs and Zs are sexy!]

The Village of Dix is a “dry” municipality (it prohibits the sale of alcohol in village limits) of approximately 500 residents, located in Jefferson County, Illinois. In October 2010, Dirt Cheap, Inc. purchased commercial real estate in Dix and opened a nightclub offering erotic entertainment. Two years later, Foxxxy Ladyz Adult World, Inc. began to rent the property from Dirt Cheap. Now operated by Foxxxy Ladyz, the nightclub features nude dancing and is open to all members of the public age twenty-one and over. Although Foxxxy Ladyz does not sell alcohol, it allows its customers to bring their own alcoholic beverages (“BYOB”) onto the premises. Foxxxy Ladyz is one of the few commercial establishments in Dix, and is located across the interstate from the Village’s other businesses, residences, and grade school.
In December 2010, shortly after Dirt Cheap opened, Dix passed three ordinances: (1) an ordinance prohibiting open containers of alcohol in public, (2) a public nudity ban, an (3) a prohibition against the possession of alcohol in places of public accommodation, such as restaurants and retail establishments.  In adopting these ordinances, Dix conducted no studies of the possible negative secondary effects of erotic nightclubs or other adult entertainment establishments, nor did it reference studies done in other locales.  In 2013, the Village sent Foxxxy Ladyz a notice that it was in violation of all three ordinances.  Foxxxy Ladyz responded by filing suit.  Foxxxy Ladyz concededly operates in violation of all three ordinances; however, Foxxxy Ladyz argued that (1) the public nudity ban violates the Free Speech provisions of the First Amendment, and (2) Dix did not have the authority under Illinois law to pass the alcohol-related restrictions.  The district court sided with the Village, and Foxxxy Ladyz appealed.
Free Speech claim.  Foxxxy Ladyz contended that the Village must point to actual evidence of potential negative secondary effects – whether it be developed by the Village itself or cited from studies of other jurisdictions – for the necessary justification for the public nudity ban. Dix argued that because the language in its public nudity ordinance was intentionally modeled after bans in other jurisdictions  “that have been approved by the courts as being consistent with the Illinois and United States Constitutions” that the findings from those bans provide all the justification needed for its own ban.  The 7th Circuit found guidance in the following statement from the US Supreme Court in City of Los Angeles v. Alameda Books:

In Renton, we…held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.

The 7th Circuit “has been consistent in requiring that a regulating body produce some specific, tangible evidence establishing a ling between the regulated activity and harmful secondary effects” (Citing Annex Books v. City of Indianapolis).  Based on the fact that Dix “has not offered an iota of evidence” on secondary effects, the 7th Circuit reversed he district court and remanded the case to district court.  The 7th Circuit noted that Dix may still have an opportunity to “demonstrate a reasonable belief in a causal relationship between public nudity and secondary effects” in litigation at the district court.

Alcohol restrictions.  The 7th Circuit interpreted Illinois law to confer on municipalities broad discretion to regulate alcohol consumption in order to promote public health and safety, including via the imposition of a prohibition on open containers of alcohol in public. The court also affirmed that the First Amendment “does not entitle a bar, its dancers or its patrons, to have alcohol available during a presentation of nude or semi-nude dancing.” Furthermore, the ordinances apply broadly to all public accommodations and do not, on their face, target establishments where protected expressive conduct is likely to occur. Under a rational basis test the Dix alcohol ordinances passed muster.

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