United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge
the well-settled standards applicable here and set forth at
length in this Court's prior rulings, Defendant's
Motion for Summary Judgment on the Constitutionality of
Ordinance No. 05-11 and on Damages  is denied. In the
Court's prior ruling on the parties' initial motions
for summary judgment, the Court held that the record, at that
time, left “too many factual questions
unanswered” for the Court to determine whether District
I-2A provides a “reasonable opportunity” to
disseminate adult speech. Mem. Op. and Order  22.
Specifically, the Court pointed to multiple factual disputes
regarding parcels identified by Defendant as “Parcel
20” and “Parcel 9.” Id. at 20-22.
prior ruling on Plaintiff's motion to reconsider, this
Court reiterated that the issue of whether an adult use
zoning ordinance allows for reasonable alternative channels
of communication “is necessarily fact-intensive,
” “requires an evaluation of multiple factors,
” and ultimately “must be resolved on a
case-by-case basis.” Mem. Op. and Order  3
(internal citations and quotations omitted). This Court
concluded that Plaintiff's newly discovered evidence did
not alter its conclusion that genuine issues of material fact
Defendant's renewed Motion for Summary Judgment on the
Constitutionality of Ordinance 05-11 and on Damages 
goes far in answering many of this Court's outstanding
questions, at least as they pertain to this particular issue.
For example, Defendant provides substantial evidence on the
size, accessibility, and divisibility of the parcels in
question, as well as the particular functions of the nearby
Muslim American Society. Plaintiff's attempts to rebut
this evidence are largely ineffective.
same time, however, Defendant's submissions introduce and
confirm uncertainty in other probative areas. To satisfy even
intermediate scrutiny, Ordinance No. 05-11 must not only
allow for reasonable alternative channels of communication,
but also be narrowly tailored. See R.V.S., L.L.C. v. City
of Rockford, 361 F.3d 402, 410 (7th Cir. 2004). In its
original summary judgment ruling (incorporated herein by
reference), this Court noted that “an underinclusive
regulatory scheme is not narrowly tailored.” Mem. Op.
and Order  14 (quoting Joelner v. Village of
Washington Park, Illinois, 508 F.3d 427, 430 (7th Cir.
2007), as am. on denial of reh'g (Apr. 3,
same ruling, this Court, in a footnote, stated that based
upon its review of the record at that time, it appeared that
the current location of PoleKatz Gentleman's Club
satisfied the zoning and location restrictions of Ordinance
No. 05-11. Id. at 4 n. 4 (citing Defendant's
Local Rule 56.1 Statement of Undisputed Facts  Ex. Y).
This inference was based on the original report from
Defendant's expert, which placed PoleKatz on the
right (i.e. eastern) half of the dual-business
structure located at 7335 West 100th Place. Def.'s Local
Rule 56.1 Statement of Undisputed Facts  Ex. Y at 5
(stating “Polekatz Building
(right-half)”) (emphasis added). This
placement ostensibly put PoleKatz outside the 500-foot
residential buffer mandated by Ordinance No. 05-11 (as well
as all other location restrictions described in the
Ordinance). See Id. at 5 (figure shows PoleKatz
outside of all relevant buffer zones). Consequently,
PoleKatz's nonconforming use exemption seemingly did not
renewed motion, however, includes a supplemental expert
report. Def.'s Local Rule 56.1 Statement of Undisputed
Facts  Ex. D. This report places PoleKatz on the
left (i.e. western) half of the dual-business
structure located at 7335 West 100th Place. Id. at 2
(stating that the “portion of Parcel 12 actually used
by Polekatz is the western-most half of the
building”) (emphasis added). This placement appears to
put PoleKatz within the 500-foot residential buffer. See
Id. at 3 (figure shows PoleKatz within 500-foot buffer).
If this in fact the case, then PoleKatz's noncomforming
use exemption, and by extension, the issue of whether
Ordinance 05-11 is narrowly tailored, remains in play (at
least as its residential buffer requirement).
final note, given the record and the remaining uncertainty as
to liability, this Court also declines to grant Defendant
summary judgment as to damages. In its motion, Defendant
devotes substantial effort to contesting the lawful
extent of Plaintiffs damages, particularly as they
relate to lost profits. The Court agrees that, as a general
principle, Plaintiff must establish lost profits with
“reasonable certainty.” TAS Distrib. Co. v.
Cummins Engine Co., 491 F.3d 625, 631 (7th Cir. 2007).
Whether Plaintiff satisfies this burden at trial remains to
be seen. Defendant fails to show, however, that Plaintiff
will not be entitled to any damages should liability
be decided in its favor. For example, the issue of lost
profits aside, Defendant appears to acknowledge that
Plaintiff at least paid application fees for his failed
attempts to establish an adult cabaret. Def's Mem. Supp.
Mot. Dismiss  3. Defendant's renewed motion does not
undermine the legitimacy of these actual damages. Moreover,
“when a party establishes that it is entitled to
damages but fails to prove the amount of those damages to a
reasonable degree of certainty, ” nominal damages are
still recoverable. TAS, 491 F.3d at 632.
as this Court has previously noted time and again, many
genuine issues of material fact exist and they preclude the
granting of Defendant's motion for summary judgment-on
liability or damages-as a matter of law. Therefore,
Defendant's Motion for Summary Judgment on the
Constitutionality of Ordinance No. 05-11 ...