The opinion of the court was delivered by: MILTON I. SHADUR
After a long and tortuous journey, this litigation--on which the parties first crossed swords, despite the fall 1994 case number of the current action, in mid-1993--has nearly reached the point of a partial consideration on the merits. "Nearly" and "partial" are the right words, because even now the question for decision is only whether plaintiff BBI Enterprises, Inc. ("BBI," the owner and operator of its "Top Shelf" establishment) is entitled to a preliminary injunction against enforcement by the City of Chicago ("City") of its adult use ordinance (the "Ordinance"
). And of course preliminary injunctive relief for a plaintiff depends not on its making a showing that it will actually prevail, but rather on the lesser showing of "some likelihood of succeeding on the merits" ( Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)).
Two major ironies have marked this dispute from the very outset:
1. Despite the United States Supreme Court's reconfirmation that nude performance dancing such as that offered at the Top Shelf is entitled to First Amendment protection because it qualifies as "expressive conduct" ( Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 581, 587, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991)), Chicago's City Council has done its best to stifle or extinguish that activity by setting up extraordinary hurdles in the form of the Ordinance.
That of course is not surprising--Chicago's legislators have long exhibited crabbed views of First Amendment rights, both in sex-related Comstockian ways (such as the City's motion picture censorship ordinance of earlier days) and otherwise (see, e.g., Nelson v. Streeter, 16 F.3d 145 (7th Cir. 1994)). Instead the irony is that at the same time so many of the City Council's purported guardians of public morality have become substantial contributors to the population of the United States Bureau of Prisons and have otherwise distinguished themselves by exhibiting other conduct of their own that most people would label as immoral.
2. To support its enactment of the Ordinance, the City Council included a number of deleterious consequences said to be attributable to adult uses, for the obvious purpose of exhibiting the moral threat thought to be posed by establishments such as Top Shelf. Yet when BBI went before the ZBA seeking to obtain a variation as an authorized adult use, that body found that not one of those consequences applied to Top Shelf to a degree sufficient to require BBI to offer any proof at all on those subjects: neither any increase in crime in the neighborhood, nor any adverse effect on other commercial or industrial enterprises in the surrounding area, nor any substantial injury to the value of other property in the neighborhood, nor any adverse effect on traffic flow, nor any generation of noise in excess of permitted levels, nor any adverse effect on the character of the surrounding neighborhood because of Top Shelf's hours of operation, nor any inconsistency with the exterior appearance of other commercial establishments.
One other preliminary word in that respect is in order before this opinion turns to the issue at hand. What has made the course of this litigation most distressing has been the level of obstructionism offered up by City and its lawyers. They have exercised every imaginable tactic to avoid having the parties' dispute resolved on the constitutional merits--for example, just during these past few weeks they launched an unsuccessful attempt to take an end run around the nonappealability of the December 23, 1994 temporary restraining order ("TRO") issued by this Court, by seeking an ill-considered writ of mandamus from our Court of Appeals to block this Court's merits-related consideration of the Ordinance.
And the City Corporation Counsel's most recent filing last week--following the preliminary injunction hearing ("Hearing") that has been conducted by this Court--has continued that pattern, again advancing counsel's several-times-rejected argument of mootness.
If this Court were more cynical, it might even suspect that such frantic efforts to avoid adjudication have reflected City's attorneys' deep lack of confidence in what the City Council hath wrought.
But this opinion at last turns to BBI's entitlement or lack of entitlement to preliminary injunctive relief. During the pendency of the TRO issued on December 23, 1994 and then extended on January 10, 1995, this Court conducted a three-day evidentiary Hearing on the preliminary injunction issues. Because the parties had understandably required some added time to prepare for the Hearing (including each side's having to depose the other's witnesses), the TRO period was then supplemented by City's reluctant agreement not to enforce the ordinance against BBI for another nine days, to allow this Court enough time to reach its decision and issue this opinion. That extension period runs out February 3, and the time has therefore proved sufficient to the purpose.
1. As to the inadequacy of any remedy at law and the irreparability of harm to BBI, what this Court has said in the course of its oral ruling granting the TRO has been reinforced and even strengthened by the evidence adduced at the Hearing.
2. It also remains true that City has shown no demonstrable harm flowing from the continued operation of the Top Shelf (other than the intangible harm of City's desire to enforce its Ordinance, which is really a bootstrap argument that depends on the validity of that Ordinance). And that same thing holds true for Roland Machinery's final factor: whether the granting of a preliminary injunction would disserve the public interest--that is, whether inordinate harm would be visited on persons not represented before the court.
3. In light of what has just been said in the preceding two paragraphs, the balancing of harms (both absolutely and in terms of Roland Machinery's "sliding scale" approach) comes down heavily in favor of BBI.
This opinion turns then to the substantive issue: BBI's likelihood of success on the merits. In that respect BBI has brought a two-level attack on the Ordinance, one on its constitutionality as applied to Top Shelf itself and the other asserting the unconstitutionality of the Ordinance in facial terms.
As for Top Shelf itself, its first attempt to challenge the Ordinance in Case No. 93 C 4274--one that this Court long deferred on Pullman abstention grounds ( Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941))--foundered because it then developed that there was an independent and adequate state law ground for denying permission for Top Shelf to operate as an adult use: BBI's then noncompliance with the admittedly valid offstreet parking requirements of City's Municipal Code. BBI claims that it has now cured that defect, but the Hearing disclosed that the waters were hopelessly muddied on that score: Despite the agreement that this Court had extracted from the ZBA's counsel to attempt to get a ruling from that body on the offstreet parking question, separate and apart from considerations of Top Shelf's compliance with the ...