XLP CORP. v. County of Lake

832 N.E.2d 480, 359 Ill. App. 3d 239, 295 Ill. Dec. 329
CourtAppellate Court of Illinois
DecidedJuly 8, 2005
Docket2-04-0255
StatusPublished
Cited by15 cases

This text of 832 N.E.2d 480 (XLP CORP. v. County of Lake) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
XLP CORP. v. County of Lake, 832 N.E.2d 480, 359 Ill. App. 3d 239, 295 Ill. Dec. 329 (Ill. Ct. App. 2005).

Opinion

JUSTICE GEOMETER

delivered the opinion of the court:

Plaintiffs, XLP Corporation, Michael J. Christofalos, Danny Christofalos, and George Stantopolous, filed an action in the circuit court of Lake County alleging that an ordinance enacted by Lake County (the county or defendant) that regulated adult establishments was unconstitutional. Following a bench trial, the circuit court entered judgment in defendant’s favor. Plaintiffs now appeal, and, for the reasons that follow, we affirm.

I. BACKGROUND

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 ordinance contains an extensive statement listing problems that the county board found were caused by adult uses, including crime, the deterioration of residential neighborhoods, the instability of nearby commercial and business uses, a “dehumanizing and distracting influence” upon young people, and the spread of diseases.

As amended, the ordinance set forth a number of conditions pertaining to adult businesses. Among its provisions are the following: (1) adult uses must obtain a license; (2) establishments may operate only from noon to midnight; (3) establishments must close on Sundays and state holidays; (4) employees are forbidden from appearing nude; (5) straddle dances are prohibited; and (6) exterior signs are limited to 32 square feet. Adult cabarets are subject to additional restrictions, including: (1) performances are limited to a stage raised at least 18 inches above the patron seating area and separated from it by 8 feet; (2) the establishment must be lit such that all items within it are plainly visible; (3) dancers are forbidden from receiving tips directly from customers; (4) tips must be placed in a receptacle after the completion of the performance; and (5) no person under the age of 21 is allowed on the premises.

In response, plaintiffs initiated the instant action, alleging violations of their rights under the first and fourteenth amendments to the United States Constitution. U.S. Const., amends. I, XIV The cause proceeded to a bench trial, following which the circuit court entered judgment in defendant’s favor. Due to the fact that a number of the issues are relatively discrete and that much evidence is relevant only to certain portions of this opinion, we will not set forth the evidence adduced at trial here. Instead, we will discuss it as we analyze the issues plaintiffs press in this appeal.

II. ANALYSIS

Plaintiffs raise the following issues. First, they argue that the licensing scheme contained within the ordinance constitutes an unlawful prior restraint. Second, they contend that Lake County has failed to demonstrate that the ordinance is justified by the purported need to control adverse secondary effects. In this argument, plaintiffs attack the ordinance as a whole. While they do at times mention certain restrictions contained in the ordinance, they do not focus on subparts of the ordinance. Accordingly, we will analyze plaintiffs’ argument as a challenge to the constitutionality of the entire ordinance. Third, they assert that the age restrictions contained in the ordinance are invalid.

A. Prior Restraint

Plaintiffs first allege that the licensing provision in the ordinance is an unconstitutional prior restraint. They argue that the scheme “permits unbridled discretion in determining whether to allow permitted expression to occur.” According to plaintiffs, this discretion is found in section 7(E) of the ordinance, which states that the applicant’s failure “to give any information reasonably relevant to the investigation of the application *** shall constitute an admission by the applicant that the applicant is ineligible for an Adult Establishment License” (Lake County Ordinance 6:1 — 15 (eff. October 9, 2001)). Plaintiffs contend that this provision results in unbridled discretion because “there is no limitation whatsoever on the ‘information reasonably relevant to the application.’ ”

Prior restraints on speech are strongly disfavored. People v. Sequoia Books, Inc., 127 Ill. 2d 271, 281 (1989). Nevertheless, a properly limited licensing regulation is not unconstitutional. A licensing regulation that places unbridled discretion in the hands of the decision maker to permit or deny speech violates the first amendment. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 100 L. Ed. 2d 771, 782, 108 S. Ct. 2138, 2144 (1988). To pass constitutional muster, a licensing scheme must contain specific guidelines regarding how the decision to grant or deny a license is to be made. International Union of Operating Engineers, Local 150 v. Village of Orland Park, 139 F. Supp. 2d 950, 960 (N.D. Ill. 2001). On this issue, the burden of proof lies with the government (International Union of Operating Engineers, Local 150, 139 F. Supp. 2d at 960), and our review of constitutional issues is de novo (Weinberg v. City of Chicago, 310 F.3d 1029, 1035 (7th Cir. 2002)).

We do not read the provision of section 7(E) about which plaintiffs complain as placing unbridled discretion with those responsible for making the licensing decision. Certainly, if the only guidance given by the ordinance were that an applicant must provide “any information reasonably relevant to the investigation of the application,” there would be little to limit the discretion of the decision maker. However, section 8(A) of the ordinance, titled “Standards for Issuance or Denial of License,” provides ample detail as to what is relevant to the processing of the application. Section 8(A) limits the inquiry to whether persons listed in the application are of a specified minimum age; whether the applicant or the applicant’s spouse or a person with whom the applicant is cohabiting has had a similar license revoked within the past 12 months; whether the establishment conforms with applicable building, zoning, health, and safety codes; and whether the applicant has confirmed in writing that he or she has read the ordinance and will comply with it. Some additional information must be disclosed pursuant to section 6, which pertains to the nature of the business and the background of the applicant. However, outside of the requirement that this information be supplied, the information required by section 6 does not form the basis of whether a license may be issued under section 8(A).

Thus, any apparent discretion vested by section 7(E) is limited to the specific criteria set forth in other sections of the ordinance. Information is reasonably relevant to the application only if it relates in some substantial way to the requirements for issuing the license.

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Cite This Page — Counsel Stack

Bluebook (online)
832 N.E.2d 480, 359 Ill. App. 3d 239, 295 Ill. Dec. 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xlp-corp-v-county-of-lake-illappct-2005.