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Foxxxy Ladyz Adult World, Inc. v. Village of Dix

United States Court of Appeals, Seventh Circuit

March 10, 2015

FOXXXY LADYZ ADULT WORLD, INC., and DIRT CHEAP, INC., Plaintiffs-Appellants,
v.
VILLAGE OF DIX, ILLINOIS, Defendant-Appellee

Argued: December 11, 2014.

Page 707

Appeal from the United States District Court for the Southern District of Illinois. No. 3:13-cv-00482; -- Michael J. Reagan, Chief Judge.

For FOXXXY LADYZ ADULT WORLD INCORPORATED, DIRT CHEAP INCORPORATED, Plaintiff - Appellant: Wayne B. Giampietro, Attorney, POLTROCK & GIAMPIETRO, Chicago, IL.

VILLAGE OF DIX, ILLINOIS, Defendant - Appellee: Aud Courtney Cox, Attorney, Carbondale, IL.

Before WOOD, Chief Judge, and FLAUM and MANION, Circuit Judges.

OPINION

Page 708

FLAUM, Circuit Judge.

Plaintiffs, owners of an adult entertainment establishment that features nude dancing and permits customers to bring their own alcoholic beverages onto the premises, challenge the enactment of three local ordinances that ban public nudity, open containers of alcohol in public, and the possession of liquor in public accommodations. Plaintiffs argue that the public nudity ban violates the free speech protections of the First Amendment, and further allege that the Village of Dix lacks statutory authority to pass the challenged alcohol restrictions. Dix filed a motion to dismiss the complaint for failure to state a claim, which the district court granted as to both issues. Because we conclude that, at this early stage of the litigation, Dix has not established the necessary evidentiary basis for its assertion that nude dancing causes adverse secondary effects to the health, welfare, and safety of its citizens, we reverse the district court's judgment with

Page 709

respect to the public nudity ordinance. However, we affirm the district court's dismissal of plaintiffs' challenge to Dix's alcohol regulations, the enactment of which falls within the parameters of Illinois law and is supported by a rational basis.

I. Background

The Village of Dix is a " dry" municipality of approximately 500 residents, located in Jefferson County, Illinois. In October 2010, Dirt Cheap, Inc. purchased commercial real estate in Dix and opened a nightclub offering erotic entertainment. Two years later, Foxxxy Ladyz Adult World, Inc. began to rent the property from Dirt Cheap. Now operated by Foxxxy Ladyz, the nightclub features nude dancing and is open to all members of the public age twenty-one and over. Although Foxxxy Ladyz does not sell alcohol, it allows its customers to bring their own alcoholic beverages (" BYOB" ) onto the premises. Foxxxy Ladyz is one of the few commercial establishments in Dix, and is located across the interstate highway from the Village's other businesses, residences, and grade school.

In December 2010, shortly after Dirt Cheap opened Foxxxy Ladyz's predecessor, Dix passed three ordinances, each of which banned certain behavior throughout the Village. First, Ordinance No. 2010-04 instituted a prohibition on open containers of alcohol in public. The preamble to the ordinance explains that " the sale at retail of alcoholic liquor is [already] prohibited by law" in Dix, and expresses a desire to " preserve the 'dry' status of the Village of Dix to the fullest extent permitted by law." The preamble further asserts that " the prohibition on the retail sale and public consumption of alcoholic liquor within [Dix] is in the public interest to maintain social order, health, welfare, and safety of citizens." The ordinance prohibits the possession of " any open container of alcoholic liquor" in any " public place" within the Village. The ordinance specifies that " public place" includes any " privately owned [property], which is open to or held out for use by the public or is otherwise available to the public."

Dix next enacted Ordinance No. 2010-05, a public nudity ban also aimed at preserving " social order, health, welfare, and safety of citizens." This ordinance replaced Ordinance No. 9, Section 7, which had been in effect in Dix since 1930 and which provided, " No person shall appear in any public place in a state of nudity, nor in a dress not belonging to his or her sex, or any indecent or lewd dress, or make any indecent exposure of his or her person, ... nor shall commit any indecent or lewd act." [1] Expressing a " desire[ to continue the prohibition on public nudity within the Village of Dix" and to " update the [1930 ordinance] to use language which has been approved by the Courts as consistent with the Illinois and United States Constitution," Ordinance No. 2010-05 reads:

No person shall knowingly or intentionally appear nude or in a state of nudity in a public place.
" Public place" means any location frequented by the public or where the public is present or likely to be present or any location where a person may reasonably be expected to be observed by members of the public or any place to which the public has a right to go or is invited.
" Nude" or " State of Nudity" means the showing of the human male or female

Page 710

genitals, pubic area, vulva, anus, or anal cleft or cleavage with less [than] a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola, or the showing of the covered male genitals in a discernibly turgid state.

An individual can comport with Ordinance No. 2010-05 by wearing pasties and a G-string.

The third ordinance, No. 2010-06, prohibits the possession of liquor in public accommodations. The ordinance--whose preamble largely restates the preamble to Ordinance No. 2010-04--defines " public accommodation" as " a refreshment, entertainment or recreation facility of any kind whose goods, services, facilities, privileges or advantages are extended, offered, sold or otherwise made available to the public." In enacting these ordinances, Dix conducted no studies, nor did it expressly cite other evidence suggesting that the operation of Foxxxy Ladyz would lead to increased crime or other undesirable " secondary effects" associated with sexually oriented businesses.

An individual who violates any of these ordinances is subject to a fine between $100.00 and $750.00 per violation, and may also be enjoined from committing further offenses. Given that Foxxxy Ladyz is a BYOB establishment that offers fully nude dancing, it concededly operates in violation of all three ordinances. In March 2013, the Dix Village Board sent Foxxxy Ladyz a notice explaining that its ...


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