Cathy's Tap, Inc. v. Village of Mapleton, 98-1303.

Decision Date24 September 1999
Docket NumberNo. 98-1303.,98-1303.
PartiesCATHY'S TAP, INC., d/b/a Shooter's; Enc, Inc., d/b/a Shooter's Gentleman's Club, Plaintiff, v. VILLAGE OF MAPLETON, an Illinois Municipal Corporation; Ken Odewalt, individually and in his official capacity as Mayor and Liquor Control Commissioner of the Village of Mapleton; Carol Brockway; Larry Daily; Richard Herold; Kevin Hess; Marshall Leaper; John Monks; and James Phillips, in their official capacities as members of the Liquor Control Commission of the Village of Mapleton, Defendants.
CourtU.S. District Court — Central District of Illinois

John H. Bisbee, Law Office of John Bisbee, Bushnell, IL, for plaintiff.

James G. Sotos, Dana M. Shannon, Jason W. Rose, Melissa A. Miroballi, Hervas Sotos Condon & Bersani, Itasca, IL, for defendants.


MIHM, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Counts I, II, and IV of the Third Amended Complaint and Motion to Dismiss Count III of the Third Amended Complaint. For the reasons stated herein, the Motion to Dismiss Counts I, II, and IV is GRANTED IN PART and DENIED IN PART, and the Motion to Dismiss Count III is DENIED.

I. Factual Background

Between April, 1996, and March 31, 1998, Plaintiff ("Cathy's Tap") did business as a retail liquor licensee in Mapleton, Illinois. In an attempt to diversify and expand its business, Cathy's Tap started doing business on or about April 1, 1998, as an adult entertainment or "adult cabaret" establishment, as subsequently defined by the Village of Mapleton. Cathy's Tap continued to serve alcoholic beverages pursuant to its previously issued liquor license and also provided "entertainment in the form of non-obscene live nude dancing by females." (Third Amended Complaint, ¶¶ 1-2).

On or about April 14, 1998, the Mapleton Board enacted Ordinance 98-02, which went into effect on June 9, 1998. According to Cathy's Tap, the Ordinance was enacted "either on [the Board's] own initiative or as the result of lobbying efforts of members of various religious groups" both in and outside of Mapleton. (Id., ¶ 7) Under § 18.B of the Ordinance, adult cabaret establishments featuring topless dancers or waitresses are prohibited from selling alcoholic beverages. (Id.). When Ordinance 98-02 was enacted, the Mapleton Board acknowledged that as of that date, there were two licenses for the sale of alcoholic liquor in Mapleton, one being Cathy's Tap. (Id., ¶ 15; Ord. 98-02 § 4). According to Cathy's Tap, "the purport and effect of Ordinance 98-02 was to single out and make unlawful the sale of alcohol by the Plaintiff in conjunction with the Plaintiff's providing expression of non-obscene erotic communications in the form of live non-obscene nude dancing...." (Third Amended Complaint, ¶ 14).

"[E]ither on its own or pursuant to the lobbying efforts of various religious groups" both in and outside Mapleton, Mapleton enacted a second ordinance, Ordinance 98-03, which went into effect on August 3, 1998. (Id., ¶ 9). Pursuant to the Ordinance, employees of adult entertainment establishments are prohibited from appearing or performing completely nude, performing "specified sexual activities," and performing "straddle dances." (Id., ¶¶ 9 and 12; Ord. 98-03 §§ 3(T), 3(U), and 11(F)(1)).1 Ordinance 98-03 also provides for the creation of an Adult Use Commissioner and sets forth regulations relating to "adult establishment licenses." It further provides existing establishments, such as Cathy's Tap, with a grace period of 60 days to secure an appropriate license. (Third Amended Complaint, ¶ 11; Ord. 98-03 § 5(F)(1)).

Cathy's Tap applied for a renewal of its liquor license on or about May 29, 1998, and on or about June 30, 1998, secured a renewal. According to Cathy's Tap, it had advised Mapleton prior to the renewal date that it was providing non-obscene, live nude dancing performed by females. On August 5, 1998, the Liquor Commissioner entered an order pursuant to § 18 of Ordinance 98-02 revoking the license. (Third Amended Complaint, ¶ 18).2

On or about August 4, 1998, Cathy's Tap procured an application for an adult use license pursuant to Ordinance 98-03. After being denied its first application for an adult use license, Cathy's Tap submitted another application, which was denied in or about February, 1999. (Id., ¶ 20).

In Count I of the Third Amended Complaint, Cathy's Tap alleges that the Ordinances serve as bills of attainder, which are prohibited by Article I, § 9, Clause 3 of the United States Constitution.3 Specifically, Cathy's Tap alleges that Ordinance 98-02, which led to the revocation of the liquor license, and Ordinance 98-03, which prohibits Cathy's Tap from offering nude dancing, legislatively adjudicated it to be guilty of a prohibited activity. (Id., Count I, ¶ 21).

In Count II, Cathy's Tap alleges that Ordinance 98-02 deprives it of its First Amendment right "to sell liquor by the drink in conjunction with the provision of non-obscene erotic message in the form of non-obscene, live nude dancing" (See id., Count II, ¶ 21). Cathy's Tap also alleges in Count II that Ordinance 98-03, by prohibiting live, nude dancing, violates the First Amendment right to freedom of expression. (Id., Count II, ¶ 22).

In Count III, Cathy's Tap alleges that both Ordinances constitute an unlawful prior restraint. (Id., Count III, ¶ 21).

Lastly, in Count IV, Cathy's Tap alleges that the Ordinances violate the Establishment Clause under the First Amendment because they are "the substantial result of pressure and efforts of individuals and religious organizations" which oppose nude dancing and/or the sale of liquor by the drink. (Id., Count IV, ¶ 19).

II. Procedural Background

On November 13, 1998, Defendants filed a Motion to Dismiss Cathy's Tap's Second Amended Complaint. On January 6, 1999, Cathy's Tap filed its Response, and oral arguments were heard by the Court on Defendants' Motion on February 1, 1999. On February 22, 1999, the Court entered a Minute Order directing Defendants to reply to Cathy's Tap's argument in its Response that the Ordinances in question constitute an unconstitutional prior restraint in violation of the Free Speech Clause of the First Amendment. Although Cathy's Tap had made a prior restraint argument in its Response to the Motion to Dismiss, this cause of action was not explicitly pleaded in the Second Amended Complaint.

Without causing Defendants to respond to the Court's Minute Order, Cathy's Tap sought leave of the Court to file a Third Amended Complaint. Defendants did not object. Cathy's Tap filed its Third Amended Complaint on April 14, 1999. Defendants subsequently moved to dismiss Cathy's Tap's prior restraint count and renewed their request to dismiss the other counts in Cathy's Tap's Second Amended Complaint, which are included as Counts I, II, and IV in the Third Amended Complaint.4 On June 8, 1999, Cathy's Tap filed its Response to Defendants' Motion to Dismiss Count III of the Third Amended Complaint. This Order follows.

III. Standards for Motions to Dismiss

In resolving a motion to dismiss, this Court must consider all well pleaded facts as true and must draw all inferences in favor of the non-moving party. See Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established as consistent with the allegations in the Complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiff to relief. See Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir.1995); Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir.1993).

IV. Bills of Attainder Claim — Count I

A law that legislatively determines guilt and inflicts punishment upon an identifiable group or individual without the protections of a judicial trial is a bill of attainder. See United States v. Brown, 381 U.S. 437, 445, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965); United States v. Lovett, 328 U.S. 303, 315-16, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Accordingly, to demonstrate that a legislative enactment is a bill of attainder, a party must demonstrate that the enactment (1) is specifically aimed at an affected person or group; (2) imposes a punishment on that person or group; and (3) imposes that punishment without a judicial trial. See Dehainaut v. Pena, 32 F.3d 1066 (7th Cir. 1994).

As a threshold matter, a bill of attainder must "specifically designate persons or groups" for punishment. See Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). Cathy's Tap's position as to the specificity of Ordinances 98-02 and 98-03 is based on the following facts: (1) § 4 of Ordinance 98-02 provides that there are currently two liquor licenses in Mapleton; (2) § 4 further provides that at any time one of the licenses lapses for non-renewal or is revoked, the maximum number of licenses shall be reduced to one; (3) § 18 of Ordinance 98-02 provides that there shall be no sale of liquor in conjunction with an adult entertainment cabaret; and (4) Ordinance § 98-03 specifically bans live nude dancing. In short, Cathy's Tap argues that because it was one of only two businesses licensed to sell alcohol and because it was offering cabaret entertainment, the Ordinances were specifically aimed at it.

Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), affirming a dismissal of a bill of attainder claim, is the most instructive Supreme Court case on the issue of specificity. In that case, the Supreme Court determined that the Presidential Recordings and Materials Preservation Act, although...

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