Pooh-Bah Enterprises v. County of Cook

• Decision Date: 19 March 2009
• Docket Number: No. 105971.,No. 105984.,105971.,105984.
• Parties: POOH-BAH ENTERPRISES, INC., d/b/a Crazy Horse Too, Appellee, v. The COUNTY OF COOK et al., Appellants.
• Court: Illinois Supreme Court

905 N.E.2d 781

232 Ill.2d 463

328 Ill.Dec. 892

POOH-BAH ENTERPRISES, INC., d/b/a Crazy Horse Too, Appellee, v. The COUNTY OF COOK et al., Appellants.

No. 105971.

No. 105984.

Supreme Court of Illinois.

March 19, 2009.

Richard A. Devine and Anita Alvarez, State's Attorneys, Chicago (Patrick T. Driscoll, Jr., Michael C. Prinzi and Paul A. Castiglione, Assistant State's Attorneys, of counsel), for appellants County of Cook and Barbara Bruno as Director of the Cook County Department of Revenue.

Mara S. Georges, Corporation Counsel, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper and Nadine J. Wichern, of counsel), for appellant City of Chicago.

Michael A. Abramson and Georgia Logothetis, of Arnstein & Lehr, LLP, and David A. Epstein, Chicago, for appellee.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion:

At issue is whether the small venue exemptions to the amusement tax ordinances of defendants Cook County and the City of Chicago violate the first amendment to the United States Constitution (U.S. Const., amend. I) or the free speech clause of the Illinois Constitution (Ill. Const.1970, art. I, § 4). We hold that they do not.

BACKGROUND

The City of Chicago and Cook County have substantially similar amusement tax ordinances with substantially similar small venue exemptions. The amusement tax is imposed upon the admission fee to enter, witness, view or participate in any "amusement" as defined by ordinance. Cook County Amusement Tax Ordinance § 3 (1999); Chicago Municipal Code § 4-156-020(A) (2008). Under the City's ordinance, an amusement is:

"(1) any exhibition, performance, presentation or show for entertainment purposes, * * * including, but not limited to, any theatrical, dramatic, musical or spectacular performance, promotional show, motion picture show, flower, poultry or animal show, animal act, circus, rodeo, athletic contest, sport, game or similar exhibition such as boxing, wrestling, skating, dancing, swimming, racing or riding on animals or vehicles, baseball, basketball, softball, football, tennis, golf, hockey, track and field games, bowling, or billiard and pool games; (2) any entertainment or recreational activity offered for public participation or on a membership or other basis including, but not limited to, carnivals, amusement park rides and games, bowling, billiards and pool games, dancing, tennis, racquetball, swimming, weightlifting, bodybuilding or similar activities; or (3) any paid television programming, whether transmitted by wire, cable, fiberoptics, laser, microwave, radio, satellite or similar means." Chicago Municipal Code § 4-156-010 (2008).

The County's definition is similar. See Cook County Amusement Tax Ordinance § 2 (1999). Operators of amusements are responsible for collecting the taxes from patrons, keeping accurate books and records, and remitting the taxes on a monthly basis. Cook County Amusement Tax Ordinance § 5 (1999); Chicago Municipal Code § 4-156-030 (2008).

Effective January 1, 1999, the City and the County amended their respective ordinances to add small venue exemptions. These exemptions apply to "live theatrical, live musical or other live cultural performances that take place in a space with a maximum capacity of not more than 750 people." Cook County Amusement Tax Ordinance § 3(D)(1) (1999); Chicago Municipal Code § 4-156-020 (West 2008). The following preamble accompanied the County's amendment: "WHEREAS, it is the intent of the County Board to foster the production of live performances that offer theatrical, musical or cultural enrichment to the people of Cook County." Cook County Board of Commissioner's Resolution, November 17, 1998, amending the amusement tax ordinance. The City Council Journal entry accompanying passage of the amendment to the city's ordinance includes the following statements:

"WHEREAS, The City Council wishes to foster the production of live performances that offer theatrical, musical or cultural enrichment to the city's residents and visitors; and

WHEREAS, Small theaters and other small venues often promote the local production of new and creative live cultural performances, and often have the most difficulty absorbing or passing on any additional costs; and

WHEREAS, Costs faced by those who produce live theatrical, musical, or other culturally enriching performances at smaller venues are substantial, and such performances often require governmental support since they could not otherwise flourish[.]" City Council Journal Entry, November 12, 1998, amending § 4-156-020(D).

Defendants later amended their respective ordinances to define "live theatrical, live musical or other live cultural performance" as:

"a live performance in any of the disciplines which are commonly regarded as part of the fine arts, such as live theater, music, opera, drama, comedy, ballet, modern or traditional dance, and book or poetry readings. This term does not include such amusements as athletic events, races or performances conducted at adult entertainment cabarets [as defined by local ordinance]." Cook County Amusement Tax Ordinance § 2 (1999); Chicago Municipal Code § 4-156-010 (2008).

The County's zoning ordinance defines "adult entertainment cabaret" to mean:

"A public or private establishment which features topless dancers, strippers, male or female impersonators or other entertainers who:

A. Display or simulate the display of `specified anatomical areas;' [sic]

B. Perform in a manner which is designed primarily to appeal to the prurient interest of a patron or person; or

C. Engage in, or engage in simulation of, `specified sexual activities.'" Cook County Zoning Ordinance of 2001, art. 14.2.1 (2006).

"Specified sexual activities" are defined as:

"A. Human genitals in a state of sexual stimulation or arousal.

B. Acts of human masturbation, sexual intercourse or sodomy.

C. Fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts." Cook County Zoning Ordinance of 2001, art. 14.2.1 (2006).

"Specified anatomical areas" are defined as:

"A. Anatomical areas if less than completely and opaquely covered by a bathing suit, blouse, shirt, dress, pants, leotard or other wearing apparel or fabric.

1. Any portion of the genitals or pubic region.

2. Any portion of the buttocks.

3. Female breast(s) below a horizontal line across the breast at a point immediately above the top of the areola, including the entire lower portion of the female breast, but shall not include any portion of the cleavage of the female breast.

B. Genitals in a discernible turgid state, even if completely and opaquely covered.

C. Paint, latex or other non-fabric coverings shall not satisfy the requirement of coverage, irrespective of whether the coverage is complete or opaque." Cook County Zoning Ordinance of 2001, art. 14.2.1 (2006).

The City's adult use ordinance contains similar definitions of "adult entertainment cabaret," "specified sexual activities," and "specified anatomical areas." See Chicago Municipal Code § 16-16-030 (2005).

In 2001, plaintiff, Pooh-Bah Enterprises, Inc., brought suit, in the circuit court of Cook County, for declaratory and injunctive relief against the County. In its complaint, plaintiff alleged that it operates an establishment under the licensed name "Crazy Horse Too." The seating capacity of plaintiff's establishment is less than 750 persons. At the establishment, scantily clad (but not completely nude) women give live performances of exotic dancing. Plaintiff stated that it had claimed the small venue exemption because the live performances at its establishment qualify as being "live theatrical, live musical, or other live cultural performances." Plaintiff claimed that its entertainment qualified either as "modern or traditional dance" or "other live cultural performances." The County denied plaintiff the exemption on the basis that the dance performances are "performances conducted at adult entertainment cabarets." Plaintiff conceded that its dancers display "specified anatomical areas" as defined in the zoning ordinance. Plaintiff argued that the amusement tax ordinance violated the first and fourteenth amendments to the United States Constitution because it discriminated on the basis of content. Plaintiff cited Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987), for the proposition that discrimination in taxation based on content violates the first and fourteenth amendments unless it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Plaintiff alleged in a separate count that the tax ordinance was overbroad in violation of the first and fourteenth amendments. Plaintiff later amended the complaint to add claims under the free speech clause of the Illinois Constitution.

The City moved to intervene on the basis that its amusement tax ordinance and small venue exemption are identical to the County's. The court granted the motion. Plaintiff then filed a second amended complaint, adding claims under the first amendment and the free speech clause against the City. In addition, plaintiff added vagueness challenges against both defendants.

Defendants moved to dismiss the second amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), alleging that it did not state any claims upon which relief could be granted. The circuit court granted the motion and dismissed the complaint in its entirety. Pertinent to the first amendment and free speech clause claims, the circuit court rejected plaintiff's argument that defendants had imposed a differential tax subject to strict scrutiny review. The circuit court found that this was not a tax that selected a narrow group to bear its burden fully, but was a generally applicable tax covering a broad range of amusements. The court found that the tax did not restrict, regulate, or prohibit exotic...