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ADMIRAL THEATRE v. CITY OF CHICAGO

August 30, 1993

ADMIRAL THEATRE, etc., et al., Plaintiffs,
v.
CITY OF CHICAGO, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 After timely removal of the action to this District Court, Riordan, Lara and Olsen answered all counts of the Complaint in which they are targeted (Counts I to VI). City has answered Counts IV to VI and has filed a motion to dismiss the remaining counts of the Complaint pursuant to Fed. R. Civ. P. ("Rule") 12(b)(6). In addition to joining City's motion, Daley and Mardis ask to be dismissed entirely as defendants. For the reasons set forth in this memorandum opinion and order, Daley and Mardis are indeed dismissed out of the case, while City's motion to dismiss is denied in principal part and granted to a limited extent. *fn3"

 Background4

 Admiral offers sexually-oriented entertainment to an adult audience in the form of nude and partially nude live dancing, motion pictures in two theaters, motion pictures in individual viewing booths, printed materials for sale or inspection on the premises and motion picture videotapes for sale or rent. On February 8, 1991 Riordan, Lara and Olsen entered Admiral's premises and effected custodial arrests of all 21 dancers who were present that evening. Those dancers were detained at a Chicago Police Department station until the morning hours of February 9, 1991. Their arrests were based on the police officers' belief that the dancers' performances were--or were going to be--obscene.

 Under Chapter 16-16 of City's Municipal Code ("Code") Admiral's operations are classified as an adult use, requiring that it obtain a registration before it may operate as a provider of any sexually-oriented entertainment. Code § 4-16-300 also requires Admiral to obtain a public place of amusement license before it may operate its motion picture theater or conduct its live dancing activities.

 When this action was first brought, City's Zoning Ordinance §§ 9.3-2(B)(6) and 9.3-3(A)(4) restricted adult uses to what that ordinance designated as C2 or C3 zoning districts and further required that the adult use be located at least 1,000 feet from the property line of any school, church or residential zoning district. In February 1993 the Zoning Ordinance was amended so that adult uses were no longer permitted uses anywhere. Instead such uses became potentially available in zoning districts designated as C1-1 to C1-5, C3-1 to C3-7 or M1-1 to M1-5 (subject to the same 1,000-foot restrictions), but in every instance the use requires approval by City's Zoning Commission of a variation in the nature of a special use. *fn5" At all relevant times Admiral has been located in a zoning district designated as B2 by the Zoning Ordinance--not an "adult use" location under either the prior or the current version of the ordinance.

 On July 15, 1990 Admiral had applied for and was later denied a public place of amusement license by City through its agents Daley and Mardis. Although no reason was provided for that denial, it was caused by City's and Daley's view that Admiral is in violation of the locational zoning restrictions for adult uses. On April 3, 1991 Admiral was served with notice that a hearing was to be held before the Mayor's License Commission as to the proposed revocation of all business and related licenses held by Admiral. That notice asserted (among other things) that (1) Admiral operated without an adult use certificate of approved registration and (2) the dancing activities of certain dancers violated various provisions of the Illinois criminal statutes and of the Code.

 Plaintiffs' Complaint

 Counts I to VI of the Complaint concern the group of custodial arrests that occurred on February 8, 1991 and the threat of similar arrests in the future. Counts I and II seek both injunctive and declaratory judgment relief as to the custodial arrests of Admiral's dancers, based on the content (or anticipated content) of their dancing, before a judicial determination has been made that the dancers' expression is not constitutionally protected speech. *fn6" Count III seeks actual and punitive damages pursuant to 42 U.S.C. § 1983 ("Section 1983") based on defendants' alleged pattern and practice of effecting improper custodial arrests on performers such as those at Admiral. Counts IV to VI state claims for damages resulting from the alleged improper treatment of the dancers arrested on February 8, 1991 during their transport to and detention at the police station, based on harassment and retaliation, intentional infliction of emotional distress and tortious interference with business relations, respectively.

 Counts VII to X of the Complaint concern zoning and licensing provisions made applicable to Admiral pursuant to the Code. Count VII challenges the constitutionality of the locational zoning restrictions placed on adult uses when the lawsuit was filed. Counts VIII and IX challenge the constitutionality of the procedures used in approving or denying an application for adult use registration and a public place of amusement license, respectively. Count X seeks a declaratory judgment that Admiral is a pre-existing non-conforming use and must therefore be allowed to continue its operations regardless of the zoning status of the area in which it is currently located.

 Counts XI and XII of the Complaint challenge the constitutionality of the substance and procedures, respectively, of Code § 4-4-280 of the Code, allowing for the revocation of Admiral's licenses. City has voluntarily stayed the revocation hearing pending the outcome of this action.

 Applicable Procedural Standards

 Because a Rule 12(b)(6) motion tests the sufficiency of a complaint and is not an ultimate decision on the merits ( Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)), the Complaint's allegations together with all reasonable inferences from those allegations must be taken as true (see n.4). Moreover, it has just been reconfirmed by the ultimate authority ( Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1162-63 (1993)) that the Rules' notice-pleading regime does not call for the pleading of particularized facts or evidence (as defendants' memoranda here would have it) and that Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) is still alive and well and living in Washington--that is, the only time that dismissal is proper is if it is clear that plaintiffs can prove no set of facts consistent with their allegations that would entitle them to relief.

 Defendants Daley and Mardis

 At the outset it is appropriate to deal with the separate motion by Daley and Mardis. They argue that they should be dismissed entirely because they have been sued only in their official capacities. With City a defendant in the lawsuit, the official capacity claims are said to serve no useful purpose.

 "Official capacity" claims against officials of local government are nothing more or less than suits against the local government itself ( Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985)). Where the unit of local government is sued as well, the suit against the officials is redundant and should therefore be dismissed ( Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987)).

 That is the posture of Daley and Mardis here. Plaintiffs' only response is that the two officials would be appropriate defendants if this action were to be remanded to the state court, but that is not about to happen--and if it did in the future, that would be time enough to reinsert them as defendants. They are indeed dismissed as defendants, and from here on out this opinion will speak only of City as defendant.

 Mootness

 After City enacted the February 1993 amendments to the relevant sections of its adult use and zoning ordinances, it filed a supplemental brief on that score. In that brief City contends that Counts VII and X are now moot because the amendments changed the zoning restrictions as to where adult uses may be located, at the same time changing adult uses from "permitted" to "special" uses. City is right.

 To be sure, "it is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice" ( City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982)). In that respect "the crucial inquiry" is whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur or (2) interim events have completely and irrevocably eradicated the effects of the alleged violation ( County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. ...


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