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7421 West 100th Place Corp. v. Village of Bridgeview

United States District Court, N.D. Illinois, Eastern Division

September 26, 2016

7421 West 100th Place Corp., Plaintiff,
v.
Village of Bridgeview, Defendant.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey, United States District Judge.

         In 2004 and 2005, Defendant Village of Bridgeview (“Defendant”) or (“the Village”) passed Ordinance Nos. 04-54 and 05-11, respectively. Together, the ordinances impose alcohol and location restrictions on new adult establishments, but exempt PoleKatz Chicago Gentleman's Club (“PoleKatz”), the only existing adult establishment in the Village. Unable to open an alcohol-serving adult cabaret, Plaintiff 7421 West 100th Place Corporation (“Plaintiff”) seeks a declaratory judgment that Ordinance Nos. 04-54 and 05-11 are unconstitutional under the First Amendment (Count I), as well as other relief, including an injunction enjoining Defendant from further enforcement (Count II).

         On October 21, 2015, Plaintiff moved for summary judgment on Count I. Pl.'s Mot. Summ. J. [100]. On February 22, 2016, Defendant responded in kind by cross-moving for summary judgment on Counts I and II. Def.'s Cross Mot. Summ. J. [117]. For the reasons stated below, Plaintiff's motion [100] is granted in part and denied in part; Defendant's cross-motion [117] is denied.

         I. Legal Standard

         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court “is not required to grant summary judgment as a matter of law for either side when faced with cross-motions for summary judgment.” Crespo v. Unum Life Ins. Co. of Am., 294 F.Supp.2d 980, 991 (N.D. Ill. 2003) (citing Market St. Assocs. Ltd. P'ship v. Frey, 941 F.2d 588, 590 (7th Cir. 1991)). Rather, the court must “evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inferences against the movant.” Id.

         II. Background[1]

         A. The Applicable Ordinances

         1. Ordinance No. 04-54

         On September 15, 2004, Defendant enacted Ordinance No. 04-54. DSOF [120] ¶ 12. Section 1 of Ordinance No. 04-54 amended the Village of Bridgeview's Municipal Code in two material respects. Id. Ex. H at 6. First, Article 10-52-3 of Section 1 prohibited the “sale, use, or consumption of alcoholic beverages on the premises of an adult use” (hereinafter the “Ordinance No. 04-54 alcohol restriction”). Id. Second, Article 10-52-4 mandated that no “adult use may be located within 1, 000 feet of any premises licensed to serve alcohol beverages” (hereinafter the “Ordinance No. 04-54 location restriction”). Id.

         In the Preamble of Ordinance No. 04-54, the Village proclaimed that the alcohol and location restrictions were necessary to ameliorate “the adverse secondary effects of adult uses.” Id. at 3. These feared secondary effects included, inter alia, “an increase in crime, ” the “diminution of property values in the surrounding area, ” and an “increase in incidents of public indecency[.]” Id. at 3-4. The Village grounded its conclusions in, among other authorities, three published federal cases: Renton v. Playtime Theaters, 475 U.S. 41 (1986), Ben's Bar, Inc. v. Village Somerset, 316 F.3d 702 (7th Cir. 2003), and G.M. Enterprises, Inc. v. Town of St. Joseph Wisconsin, 350 F.3d 631 (7th Cir. 2003).[2] Id. at 4.

         Despite the new restrictions, Section 2 of Ordinance No. 04-54 carved out an exemption for “any person or entity” granted a special use permit on or before September 15, 2014. Id. at 6. Only one adult establishment, PoleKatz, qualified for this exclusion.[3] PoleKatz commenced operations in May 2005 and serves alcohol to patrons. DSOF [120] ¶¶ 8-9; PSOAF [134] ¶¶ 5-6, 9-10, 12.

         2. Ordinance No. 05-11

         On April 20, 2005, the Village enacted a companion adult use ordinance, Ordinance No. 05-11. DSOF [120] ¶ 15. Like Ordinance No. 04-54, Ordinance No. 05-11 aimed at ameliorating the secondary effects of adult establishments. Id. Ex. I at 2. Ordinance No. 05-11 amended the Village's Zoning Ordinance in two material respects. First, it restricted adult establishments to “I-2A Intensive Industrial District” zones only (hereinafter the “Ordinance No. 05-11 zoning restriction”). Id. at 7. Second, it imposed four additional location restrictions prohibiting adult establishments (1) within 1, 000 feet of a religious institution; (2) within 500 feet of another adult use; (3) within 1, 000 feet of a public park or recreation area, public or private school, nursery or child daycare center; or (4) within 500 feet of any residential use or district zoned for a residential use (hereinafter the “Ordinance No. 05-11 location restrictions”). Id. at 7-8. Given the nonconforming use previously established on September 15, 2004, the passage of Ordinance 05-11 did not impact PoleKatz.[4]

         B. Plaintiff's Efforts to Open an Adult Establishment

         1. 7421 West 100th Place

         On April 18, 2013, Plaintiff entered into an agreement to acquire real property located at 7421 West 100th Place, within one block of PoleKatz. PSOF [112] ¶ 7. Plaintiff intended to use the 7421 West 100th Place property to open an adult cabaret. Id. ¶ 8. According to Plaintiff, its purchase agreement was contingent upon Plaintiff's ability to obtain a liquor license. Second Am. Compl. [69] ¶ 11. On April 29, 2013, Plaintiff applied to the Village for a Class G adult entertainment liquor license for the premises. PSOF [112] ¶ 12, Ex. 7. On May 1, 2013, the Village denied Plaintiff's application. Id. ¶ 13, Ex. 8. In the denial, the attorney for the Village cited the Ordinance No. 04-54 alcohol restriction. Id. Ex. 8.

         On May 15, 2014, Plaintiff submitted a second application for a Class G liquor license. DSOF [120] ¶ 22. On June 5, 2014, the Village denied the second application, again citing the Ordinance No. 04-54 alcohol restriction. Id. ¶ 23; PSOF [112] Ex. 3. On June 14, 2013, Plaintiff's contract to purchase 7421 West 100th Place was canceled. PSOF [112] Ex. 10.

         2. 9800 Industrial Drive

         Undeterred, on September 8, 2014, Plaintiff entered into a new purchase agreement to acquire real property located at 9800 Industrial Drive in Bridgeview. PSOF [112] ¶ 21. 9800 Industrial Drive is not located in the I-2A Intensive Industrial District; rather, the property falls in the “I-2 General Industrial District, ” which, under the Ordinance No. 05-11 zoning restriction, is not zoned for adult use. DSOF [120] ¶¶ 26-29. Like 7421 West 100th Place, Plaintiff intended to use the 9800 Industrial Drive property to open an adult cabaret. PSOF [112] ¶ 22. On September 17, 2014, Plaintiff submitted its third application for a Class G liquor license. DSOF [120] ¶ 24, Ex. N.; PSOF [112] ¶ 23. The third time was not a charm; citing the Ordinance No. 05-11 zoning restriction, the Village Attorney denied the application. DSOF [120] ¶ 25; PSOF [112] ¶ 27.

         C. The ...


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