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Excalibur Video, Inc., Susan Watson, and Michelle Fennell v. Village of Melrose Park

May 14, 2013

EXCALIBUR VIDEO, INC., SUSAN WATSON, AND MICHELLE FENNELL, PLAINTIFFS,
v.
VILLAGE OF MELROSE PARK, GREG SALVI, DETECTIVE JUAN, AND UNKNOWN MELROSE PARK POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiffs Michelle Fennell ("Fennell") and Susan Watson ("Watson") were arrested during a compliance check at plaintiff Excalibur Video, Inc. ("Excalibur"). Plaintiffs filed a five-count amended complaint against the Village of Melrose Park (the "Village"), Greg Salvi ("Officer Salvi"), Jeffrey Juan ("Officer Juan") and unknown Melrose Park Police Officers.

In Count I, plaintiff Watson seeks relief under § 1983 for false arrest. Plaintiff Fennell makes the same claim in Count II. In Count III, Excalibur seeks relief under § 1983 for illegal search and seizure and deprivation of property without due process. In Count IV, Excalibur seeks a declaration that a Village Ordinance regulating adult businesses is unconstitutional, and in Count V, it seeks to enjoin enforcement of that ordinance.

Defendants have moved for summary judgment with respect to Counts I, II and III. The plaintiffs have moved for summary judgment on all claims. For the reasons set forth below, the Court denies plaintiffs' motion for summary judgment. The Court grants in part and denies in part defendants' motion for summary judgment.

I. Background

Unless otherwise noted, the following facts are undisputed.*fn1

Plaintiff Excalibur is a corporation managed by Robert Palombo ("Palombo") and Louis Messina ("Messina"). In 1990, Excalibur began operating as an adult book and video store, and it has added additional services over the years. During the relevant time period, Excalibur employed plaintiff Watson as a cashier. From January 2010 through April 21, 2010, plaintiff Fennell worked at Excalibur as an independent dancer, which is to say that Excalibur did not consider her an employee.

Defendant Officers Salvi and Juan were, at all relevant times, police officers employed by defendant Village of Melrose Park (the "Village").

The Village of Melrose Park ("the Village"), in which Excalibur sits, regulates adult businesses within the district. In 2004, the Village enacted Ordinance No. 837, which established licensing requirements for the adult-entertainment businesses located within the Village. Ordinance No. 837 was codified in the Village of Melrose Park Municipal Code as Chapter 5.08 ("Village Municipal Code 5.08"). Village Municipal Code 5.08 states, in relevant part:

WHEREAS the Village of Melrose Park, Illinois (the "Village") has reviewed and analyzed numerous studies, reports, articles, judicial decisions, and the experience and the legislative findings of other counties and municipalities in the Chicago metropolitan region and around the country concerning the impact, or "secondary effects," of sexually oriented businesses and the sale, distribution, and display of sexually oriented materials (collectively, "Sexually Oriented Business Activities") on the areas in which such Activities are located or take place; and

WHEREAS, Sexually Oriented Business Activities can cause or contribute significantly to increases in criminal activity in the areas in which they are located or take place, thereby taxing crime prevention, law enforcement, and public health services; and

WHEREAS, Sexually Oriented Business Activities encourage prostitution, attracts or encourages other related criminal activity, increases the public health and safety risks associated with Sexually Oriented Business Activities, and otherwise causes or contributes significantly to the adverse impacts and secondary effect of Sexually Oriented Business Activities on the areas in which such Activities are located or take place; and

WHEREAS, the conduct of Sexually Oriented Business Activities, including specifically, but without limitation, adult cabarets that provide nude dancing and other similar conduct and the operation and use of adult booths, often encourages or allows sexual activities and prostitution, among other things, that place employees and patrons of such businesses at risk to exposure and contraction of sexually transmitted diseases, including specifically, but without limitation, the HIV virus, Acquired Immune Deficiency Syndrome, and venereal diseases; and

WHEREAS, the President and Members of the Village Board of Trustees have determined that Sexually Oriented Business Activities will, unless properly regulated, have these and other severe adverse impacts and secondary effects on the Village and its residents; and

WHEREAS, for the reasons set forth above, among others, the President and Members of the Village Board of Trustees have found and determined that it is essential to the health, safety, and general welfare of the Village and its residents to adopt comprehensive licensing regulations relating to Sexually Oriented Business Activities, to the distribution and display of sexually oriented materials, and to the types and operations of sexually oriented businesses that may be located in the Village; and

WHEREAS, the President and Members of the Village Board of Trustees have further found and determined that the establishment of the regulations provided in this Ordinance on the operation, maintenance, and structural aspects of Sexually Oriented Business Activities is necessary to minimize to the greatest extent possible, or to eliminate altogether, the public health and safety risks that customarily, but unnecessarily, exist in connection with such Activities;

NOW THEREFORE, BE IT ORDAINED by the Village President and Board of Trustees of the Village of Melrose Park, Cook County Illinois, as follows:

ARTICLE II.

LICENSING

Section 3. Definitions.

For purposes of this Ordinance, the following terms, phrases and words shall have the meanings given herein.

B. Adult Entertainment Establishment. Any of the following

Commercial Establishments, as defined herein:

1. Adult Cabaret. Any Commercial Establishment that as a substantial or significant portion of its business features or provides any of the following:

(a) Persons who appear Semi-Nude.

(b) Live performances that are distinguished or characterized by an emphasis on the exposure, depiction, or description of Specialized Anatomical Areas or the conduct or simulation of Specified Sexual Activities.

(c) Films, motion pictures, video or audio cassettes, slides, computer displays, or other visual representations or recordings of any kind that are distinguished or characterized by an emphasis on the exposure, depiction, or description of Specified Anatomical Areas, or the conduct or simulation of Specified Sexual Activities.

2. Adult Store. Any Commercial Establishment (a) that contains one or more Adult Booths; (b) that as a substantial or significant portion of its business offers for sale, rental, or viewing any Adult Materials; or (c) that has a segment or section devoted to the sale or display of Adult Materials.

3. Adult Theater. Any Commercial Establishment that as a substantial or significant portion of its business features or provides (I) films, motion pictures, video or audio cassettes, slides, or other visual representations or recordings that are distinguished or characterized by an emphasis on the exposure, depiction, or descriptions of Specified Anatomical Areas, or the conduct or simulation of Specified Sexual Activities; or (ii) live performances that are distinguished or characterized by an emphasis on the exposure, depictions, or description of Specified Anatomical Areas or the conduct or simulation of Specified Sexual Activities.

N. Nude or State of Nudity. A state of dress or undress that exposes to view (I) less than completely and opaquely covered human genitals; pubic region; anus; or female breast below a point immediately above the top of the areolae, but not including any portion of the cleavage of the female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areolae is not exposed; . . .

P. Semi-Nude. A state of dress or undress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well, as portions of the body covered by supporting straps or devices or by other minor accessory apparel such as hats, gloves, and socks.

Section 5. Adult Establishment Licenses Generally

A. Adult Establishment License Required. An Adult Establishment License shall be required to establish, operate, or maintain an Adult Entertainment Establishment within the Village.

C. Operation in Violation of License Prohibited. It shall be unlawful for any Licensee to establish, operate, or maintain an Adult Entertainment Establishment within the Village except in the manner authorized by, and in compliance with, the provisions ...


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