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Wright v. County Of Du Page

September 13, 2000

WARREN J. WRIGHT, D/B/A LAKE STREET SPA AND SPA 64; LAKE STREET SPA, INC.; THOMAS BOGAERT, D/B/A SPA 64; AND SPA 64, INC., PLAINTIFFS AND COUNTERDEFENDANTS- APPELLANTS,
v.
THE COUNTY OF DU PAGE, DEFENDANT AND COUNTERPLAINTIFF- APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 98--CH--572 Honorable John W. Darrah, Judge, Presiding.

The opinion of the court was delivered by: Bowman

Plaintiffs-counterdefendants, Warren Wright, d/b/a Lake Street Spa and Spa 64; Lake Street Spa, Inc.; Thomas Bogaert, d/b/a as Spa 64; and Spa 64, Inc. (collectively the Spas), appeal from the judgment of the circuit court of Du Page County permanently restraining and enjoining the Spas from using the property at their respective locations as adult businesses. Defendant-counterplaintiff, the County of Du Page (County), had filed a second amended counterclaim seeking such relief.

On appeal the Spas contend that (1) they lawfully located under the zoning provisions in effect at the time they opened and therefore are entitled to continue to operate as prior nonconforming uses; (2) the trial court erred in determining that the activity conducted at the Spas was not protected under the first amendment free speech clause (U.S. Const., amend. I); and (3) the trial court erred in upholding the constitutionality of the County's adult business use zoning provisions and in enjoining the operation of any adult business use at the Spas' respective locations, as the provisions were overly restrictive and a prior restraint on freedom of speech.

The Spas commenced their operations in 1996 offering services that included touching, rubbing, and application of pressure by female employees to the bodies of paying customers. The Spas charged various prices for their massages depending on the duration of the visit and the state of undress of the employee. The massages were not performed for therapeutic purposes. Prior to and during 1996 and continuing to the present time, the Du Page County Zoning Ordinance (Du Page County Zoning Ordinance (1997)) provided for adult uses in light industrial districts (I-1) and in general industrial districts (I-2).

Lake Street Spa is located at 24W464 Lake Street in unincorporated Du Page County in a local business district (B-1). The north side of the spa's property is adjacent to property that is zoned residential. Spa 64 is located at 21W500 North Avenue in unincorporated Du Page County in a general business district (B-2). The spa is about 300 feet from a single-family residence and 200 feet from a multiple-family residence. Neither the surrounding zoning classification nor the residential characters where the Spas are located have changed since the commencement of their operations.

Initially, litigation began when the County filed an administrative complaint against the Spas for violations of the Du Page County massage establishment license ordinance. The Spas then filed a complaint in the circuit court seeking an injunction to preclude an administrative hearing. The County withdrew its administrative complaint and filed a counterclaim, bringing, essentially, the same cause of action as the cause in the administrative complaint. The County sought injunctive relief to enjoin the Spas from conducting massage establishments at their respective locations until each spa obtained a massage establishment license. In opposition to the County's request, the Spas argued that, because the massages given at their establishments were purely recreational and not therapeutic, they were not subject to regulation by the massage establishment license ordinance and, therefore, could not be operating in violation of that ordinance. The parties had previously entered into a stipulation stating that the Spas did not perform therapeutic massages at their establishments but, rather, "erotic entertainment performances." The trial court denied the County's request for injunctive relief.

Subsequently, the County filed a second amended counterclaim, seeking to have the Spas permanently enjoined from conducting their activities. The County contended that the Spas' use of their property constituted an adult use as defined in the Du Page County Zoning Ordinance (ordinance) and was permitted only in I-2 districts and conditionally permitted in I-1 districts. Additionally, the County contended that each use was illegal because it was being conducted within 500 feet of residential districts.

The Spas filed a second amended complaint, seeking a declaration that they could continue in business where they were located. The Spas alleged that, at the time they commenced their operations, they were specifically permitted to perform such activities under the ordinance and therefore enjoyed the protection afforded to a prior nonconforming use. The Spas reasoned that they were a permitted use because they were massage parlors. The Spas maintained that their business use qualified them as "masseurs" and that the ordinance expressly and specifically permitted masseurs to locate as permitted uses in B-1 and B-2 zoning districts. The Spas asserted that, if the ordinance was found to bar their uses where located, the Spas were otherwise protected by the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV) and section four of article 1 of the Illinois Constitution (Ill. Const. 1970, art. I, §4). Specifically, the Spas maintained that their activities constituted presumptively protected expression and that the ordinance was unconstitutional as overly restrictive or a prior restraint on free speech.

The County answered that, when the Spas opened for business in 1996, they were not permitted uses within the B-1 and B-2 districts where they located. As a result, the Spas could not enjoy the protection afforded a prior nonconforming use. The County also responded that the business of the Spas did not involve protected conduct pursuant to first amendment guarantees of free speech and, even if so protected, the ordinance was not constitutionally invalid as overly restrictive or a prior restraint on free speech.

The cause proceeded to trial. At trial Officer Dennis Schar of the Glendale Heights police department and Detective Mark DePino of the Du Page County sheriff's office testified regarding their undercover investigative visits to the Spas. The officers testified to conduct that was corporeal in nature and consisted of the methodical touching of each officer by a female employee while she was wearing nothing but a G- string. The officers were nude. Schar related that the woman who performed the massage on him told him that he could touch himself during the massage. Also, when she massaged his legs, back, and chest, she pressed her breasts against his body. DePino stated that his massage worker told him that he could touch her body, but not her "private parts," while she was giving him the massage. Both Schar and DePino indicated that there was no performance or dance during the massages and any conversation, other than the female employees explaining to the officers what they were allowed to do during the massage, amounted to small talk.

April McLaughlin, the manager of Spa 64, described the massages as visual and auditory experiences that could include dancing and role playing. According to McLaughlin, visual stimulation was provided by the completely mirrored and dimly lit massage rooms. Auditory stimulation was provided by sensual music and conversation. It was McLaughlin's testimony that the Spa employees often incorporated adult conversation during the sessions. McLaughlin acknowledged that the sign in the lobby of Spa 64 setting forth the prices for three different massages did not refer to the sessions as massage sessions but as "erotic encounters."

William Heniff, the zoning administration supervisor for the County, testified that the term "masseur" is not synonymous with the term "massage parlor," as the former is an occupation and the latter is a use on the premises. Heniff stated that, under the ordinance, a massage parlor offering nude or topless massages would be classified as an adult business use. Heniff based his classification both on the definition of "adult business use" in the ordinance and on the definition of "specified anatomical areas." Under the ordinance, an adult business use refers to any use of a substantial portion of property for an activity characterized by emphasis on matters relating to specified anatomical areas. "Specified anatomical areas" is defined in part as "[l]ess than completely or opaquely covered human genitals, pubic region, buttock, anus or female breasts below a point immediately above the top of the areola." Du Page County Zoning Ordinance §37--3.2 (1997). Heniff related that an adult use of the sort being conducted at the Spas can be allowed as a conditional use in I-1 districts and a permitted use, as a matter of right, in I-2 districts. Heniff testified that, from their inceptions, the Spas constituted illegal uses at their locations in B-1 and B-2 districts. Heniff stated that neither spa ever applied for a conditional use.

According to Heniff, the 1986 amendment to the County's zoning ordinance allowed adult businesses to locate as permitted uses in I-2 districts and as conditional uses in I-1 districts. At that time, Heniff stated, the preamble to those regulations stated that the industrial districts represented "4.7% of the total unincorporated area of Du Page County." Heniff pointed out that in 1986 there were substantially more parcels available for adult business uses than in 1996. But, when the Spas opened, there were an adequate number of sites available for an adult business use both in I-2 and I-1 districts. Heniff related that in 1996 the restrictions as to the location of adult businesses were identical to the restrictions set forth in the 1986 amendment to the ordinance. Heniff specifically described and identified on a map depicting industrial-zoned districts in unincorporated Du Page County four sites that he had personally visited where adult businesses were permitted.

Heniff estimated that between 1986 and 1998 the industrial-zoned property in unincorporated Du Page County had decreased by 60% due to the annexation of that land by surrounding municipalities. Heniff explained that the County has no legal standing in municipal annexation proceedings and that, although land available for adult business uses was diminishing, the diminution was due to municipal annexation and not to the County's zoning ordinances.

Neil Renzi, a professional appraiser, testified that he was hired by the Spas to identify and inspect all I-1 and I-2 districts located in unincorporated Du Page County that contained land available for adult business uses. Renzi was to assess the sites to determine if they were commercially suitable, i.e., assess the development costs, accessability, and compatibility of the sites with the proposed "generic commercial enterprise" that might be located at a specific site. Renzi defined generic commercial enterprises as bakeries, card shops, banks, grocery stores, and restaurants. According to him, adult nude massage parlors also constituted generic commercial enterprises. Renzi opined that generic commercial enterprises are incompatible with industrial lands in Du Page County. In his opinion no parcel of industrial land in unincorporated Du Page County, including any of the sites presented by the County, would be suitable for an adult business use or for relocating a generic commercial enterprise.

Joseph Abel, director of planning for the County from 1970-1987 and developer of the first comprehensive plan for the County, testified that the County's planning authority is county-wide, i.e., its land use plan applies to all of the incorporated as well as unincorporated land within the county. The County's zoning authority is restricted to the unincorporated areas. Presently, only 20% of the unincorporated areas in the county is left for development. Abel opined that by 2010 there will be no unincorporated land remaining for any sort of development, as municipalities will have annexed all of the remaining undeveloped or unincorporated areas. Abel acknowledged that the County has no standing in annexation proceedings and is notified of annexations after they have been accomplished.

Abel testified that adult uses were not discussed as part of the County's comprehensive plan and that they were not part of the planning program. The County deals with the distribution of adult business ...


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