A group of investors have renewed their long-running legal fight win the chance to open a strip club in suburban Broadview, now asking a federal judge for permission to directly challenge the constitutionality of an 11-year-old state law the would-be club operators contend effectively bans all adult entertainment establishments from opening anywhere in the town.
On Oct. 4, lawyers for the group known as Chicago Joe’s Tea Room LLC filed a motion in Chicago federal court, asking U.S. District Judge John Z. Lee for leave to amend their original lawsuit, to ask the judge to strike down a 2007 Illinois law the Chicago Joe’s group contends violates its First Amendment rights.
The motion comes on the heels of a ruling earlier this year from the U.S. Seventh Circuit Court of Appeals, which upheld the decision of Judge Lee, who found the village of Broadview was legally within its rights when it enacted ordinances denying Chicago Joe’s the permits they sought for their planned club.
That decision was based largely on the Illinois state law, which the Seventh Circuit judges said “now prohibits Chicago Joe’s from opening anywhere in Broadview” and which would “effectively prohibit a court from granting effective relief to Chicago Joe’s even if Chicago Joe’s prevailed on its federal constitutional challenges to the Broadview ordinances.”
The dispute dates back to 2006, when the Chicago Joe’s group first sought permission from the village of Broadview to open their proposed club, which was planned to include “semi-nude” dancing.
The identities of those who would own and operate the club remain largely publicly unknown, concealed by what judges have called “an obscure trail of contracts, trusts, and illusory commitments.”
Published reports indicate the Chicago Joe’s group is publicly headed by a businessman identified as David Donahue, who also played a role in the development of the Polekatz strip club in suburban Bridgeview. While the group likely includes a number of other individuals, the Seventh Circuit judges noted the identities of the other investors and partners remains hidden by a host of corporate aliases and a “tangled record of transactions that seem designed to conceal the real parties in interest and their substantive deals.”
After receiving the Chicago Joe’s proposal, the village of Broadview balked at the request, citing a village ordinance forbidding such adult entertainment establishments from also selling liquor. The village also simultaneously revised their zoning ordinance in a move another federal judge found was targeted specifically at the Chicago Joe’s group.
The Chicago Joe’s group sued the village, asserting the denial and the ordinances undergirding the denial violated their constitutional rights.
Shortly after the lawsuit was filed, Illinois state lawmakers passed a law forbidding strip clubs from opening within one mile of any “school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship” in suburban Cook County.
While another federal judge, U.S. District Judge Joan Gotschall, said she believed Chicago Joe’s had a “vested right” to pursue its permit applications, because its lawsuit was filed before the state changed the law, Judge Lee and the Seventh Circuit disagreed.
The Seventh Circuit particularly noted Chicago Joe’s never challenged the state law.
In its new motion, Chicago Joe’s attempts to tackle that task.
They assert their attempt to challenge the law is not a decade too late, as, they said, until Judge Lee and the Seventh Circuit found otherwise, they had no reason to believe the 2007 law would apply to their permit applications.
They asserted the Illinois law is unconstitutional, as they argue the state directly targeted the law at disfavored speech, and not at any deleterious “secondary effects” caused by the prohibited land uses.
“Here, there is nothing in the legislative record that suggests that this statute or its subsequent amendments were passed primarily to curb secondary effects of adult businesses,” Chicago Joe’s wrote in its filing. “A legislative body may rely on many forms of evidence to demonstrate concerns with secondary effects, but here, the State relied on nothing.”
Further, the plaintiffs argued the law is not “narrowly-tailored,” as it blocks “all adult use” in Broadview.
“There is no logical justification for assuming that adult uses have adverse impacts on churches, parks and schools if less than a mile from such use,” Chicago Joe’s said. “It borders on an absurd proposition from a land use perspective.”
And, they argued evidence indicates the state does not equally enforce the law, as “the Illinois Liquor Control Commission has issued licenses to three new adult use businesses that violate the setback requirements and began operations in 2009, 2013 and 2015 and the Illinois Department of Revenue has issued business tax identification numbers and collected sales taxes from those same adult businesses.”
“Thus, not only is it possible for Chicago Joe’s to overcome the state’s setback requirements, exceptions appear to happen as a matter of course,” Chicago Joe’s argued.
Chicago Joe’s is represented in the action by attorneys Timothy E. Horton and Dean J. Polales, of the firm of Nixon Peabody LLP, of Chicago.