Shopping Delite, Inc v. City of Bellevile et al

Filing 60

ORDER granting 57 MOTION for Summary Judgment. Signed by Judge Stephen P. McGlynn on 8/29/2024. (jce)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHOPPING DELITE, INC
Plaintiff,
v.

Case No. 22-cv-1065-SPM

CITY OF BELLEVILLE, and
SHARI BLAKESLEE,
Defendants.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Pending before the Court is a Motion for Summary Judgment filed by Defendants
City of Belleville and Shari Blakeslee. (Doc. 57). For the reason’s set forth below, the
Court GRANTS the Motion.
This action arose from the denial of a commercial occupancy permit by the City
of Belleville, Illinois to Shopping Delite. In the operative complaint, Shopping Delite
raised two claims: first, that the Belleville Adult Oriented Businesses Statute, i.e.,
Ordinance 8183-2018, was unconstitutionally vague as applied; and second, that said
statute was unconstitutional under the First and Fourteenth Amendments to the extent
it regulated expressive conduct. (Doc. 21).
PROCEDURAL HISTORY
On May 19, 2022, Shopping Delite filed its complaint against defendants herein.
(Doc. 1). On July 7, 2022, defendants filed a motion to dismiss. (Doc. 19). On July 8,
2022, this Court entered an Order advising plaintiff that it could either file a response

Page 1 of 19

to the motion to dismiss OR an amended complaint on or before August 8, 2022. (Doc.
20).
On July 27, 2022, plaintiff filed the first amended complaint (“FAC”). (Doc. 21).
On August 18, 2022, defendants filed a second motion to dismiss. (Doc. 23). On August
19, 2022, plaintiffs were advised that a response was due to the pending motion to
dismiss on or before September 19, 2023. (Doc. 24). Plaintiff did not file a timely
response; therefore, on September 23, 2022, the undersigned issued an Order to Show
Cause pursuant to Local Rule 7.1(c) and inquired why the Court should not deem the
failure to respond as “an admission of the merits of the motion.” (Doc. 25). The Order to
Show Cause also advised plaintiff that this action could be dismissed for lack of
prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.).
On October 6, 2022, plaintiff filed its response to the motion to dismiss FAC in
compliance to the Order to show cause. (Doc. 26). Ultimately, on November 30, 2022,
the aforementioned motion to dismiss was denied after this Court found that Shopping
Delite had pled enough to plausibly allege that it was entitled to relief. (Doc. 28).
On January 6, 2023, this case was assigned CJRA Track C with a final pretrial
conference setting on May 6, 2024 and a presumptive jury month of May 2024. (Doc. 31).
On January 30, 2023, a scheduling order was entered with a discovery deadline of
December 12, 2023 and a dispositive motion deadline of January 22, 2024. (Doc. 34).
On April 26, 2023, defendants filed a motion to compel contending that plaintiff
did not respond to the discovery that had been propounded on March 1, 2023. (Doc. 38).
On May 1, 2023, defendants filed a motion to amend the scheduling order to compensate
for plaintiff’s discovery delays. (Doc. 40). On May 9, 2023, a hearing was conducted at
Page 2 of 19

which time the undersigned addressed counsel and the two pending motions. (d/e 46).
The Court granted the motion to amend, but declined to rule on the motion to compel
because plaintiff advised the Court that the written discovery was being provided. (Id.).
Instead, the undersigned granted defendants fourteen days, or up to May 23, 2023, to
advise whether they intended to proceed on the motion to compel. (Id.). On May 24,
2023, the motion to compel was terminated as moot because no objection had been
received; however, defendants were advised they could reinstate this issue. (Doc. 47).
On December 20, 2023, defendants filed a second motion to compel claiming they
had not yet received plaintiff’s discovery responsive to the prior motion to compel. (Doc.
48). On that same date, defendants also filed a second motion to amend/correct the
scheduling Order due to plaintiff’s discovery delays. (Doc. 49).
At a January 24, 2024 hearing, plaintiff provided the discovery responses to
defense counsel, claiming they were inadvertently not sent. (d/e 52). The next day,
January 25, 2024, both motions were granted with the discovery deadline being
extended to May 24, 2024 and the dispositive motion deadline being extended to June
23, 2024. 1 (d/e 58).
On June 7, 2024, defendants filed a motion to deem facts admitted. (Doc. 54). The
motion referenced Requests for Admission that were propounded on May 3, 2024 and
was filed pursuant to Rule 36 of the Federal Rules of Civil Procedure, which states in
pertinent part,
“(3) Time to Respond; Effect of Not Responding. A matter is
admitted unless, within 30 days after being served, the party to whom
Pursuant to Rule 6 (a)(3)(A) of the Federal Rules of Civil Procedure, the deadline for filing a dispositive
motion was automatically extended to June 24, 2024 because June 23, 2024 fell on a Sunday when the
Clerk’s office was closed and inaccessible.
1

Page 3 of 19

the request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party or its
attorney. A shorter or longer time for responding may be stipulated to
under Rule 29 or be ordered by the court.” FED. R. CIV. P. 36 (a)(3).
On June 21, 2024, the undersigned granted the motion to deem facts admitted 2.
(d/e 56). The Order referenced local rules and noted that fourteen days had elapsed
without any response, and that “failure to file a timely response to a non-dispositive
motion may be deemed consent to the relief requested.” (SDIL-LR 7.1 (b)(1)(A)).
On June 24, 2024, defendants filed their motion for summary judgment and
memorandum in support thereof. (Doc. 57). On that same date, the Court advised
plaintiff that the responsive pleading “shall be filed on or before July 24, 2024.” (d/e 58).
Within the motion, defendants argued that summary judgment was appropriate
as to Count I because plaintiff could not establish that defendants violated the
Fourteenth Amendment. (Doc. 57, p. 7). Specifically, defendants contended that the
City’s Adult Oriented Business ordinance was neither constitutionally vague nor that it
violated the due process clause. (Id.). Defendants further claimed that summary
judgment was proper as to Count II because plaintiff could not establish that said
ordinance was an unconstitutional regulation of expressive conduct. (Id.). Finally,
defendants asserted that Blakeslee was entitled to summary judgment on the basis of
qualified immunity because she was a government office performing a discretionary
function. (Id.).

Although not required to do so, the undersigned did not grant the motion until fourteen (14) days had
passed since the filing, giving plaintiff the time necessitated in the local rules to file a response in
opposition. See SDIL-LR 7.1(b)(2)(A).
2

Page 4 of 19

On August 27, 2024, plaintiff filed a motion for an extension of time to file a
response, apologizing for the delay and claiming it was “caused by the unexpected press
of other business, including multiple appeal briefs in multiple cases.” (Doc. 59). The
undersigned notes that plaintiff did not seek an extension until more than 30 days after
the deadline expired and more than 60 days after the filing of the motion. As such, said
motion is DENIED as untimely. Indeed, it was too little, too late.
MATERIAL FACTS
One section of defendants’ motion was devoted to “Undisputed Facts”, which was
then broken down into several subsections. (Doc. 57). As set forth infra, plaintiff did not
timely respond to the motion for summary judgment nor did plaintiff contest any of the
purported material facts. A failure to properly contest the statement of material
facts set out in the movant's statement constitutes a binding admission of those
facts. See Brasec v. Heinemann’s Inc., 121 F.3d 281 (7th Cir. 1997).
Moreover, on June 21, 2024, this Court granted defendants’ motion to deem
certain facts admitted. “[A]dmissions made under Rule 36, even default admissions, can
serve as the factual predicate for summary judgment.” United States v. Kasuboski, 834
F.2d 1345, 1350 (7th Cir. 1987) (citing Dukes v. South Carolina Ins. Co., 770 F.2d 545
(5th Cir.1985); see also McCann v. Mangliardi, 337 F.3d 782, 788 (7th Cir. 2003).
In light of the foregoing, the following is a recitation of the undisputed facts 3:
A. The City of Belleville’s Adult Entertainment Businesses Ordinance

Because Shopping Delite did not respond to the Motion for Summary Judgment, the undisputed facts
alleged by defendants are adopted and admitted.
3

Page 5 of 19

The City is a municipal corporation existing in St. Clair County, Illinois. On or
about April 2, 2018, the City adopted Ordinance 8183-2018, which codified the City’s
Adult Entertainment Businesses Ordinance (“Ordinance”). (See generally Exhibit A,
City of Belleville Adult Entertainment Businesses Ordinance). The purpose of the
Ordinance is clear – to protect, preserve, and promote the health, safety and welfare of
the City’s residents and patrons of sexually oriented businesses, as well as curb the
negative secondary

effects that

historically and regularly accompany

adult

entertainment businesses. (See Exhibit A, City of Belleville Adult Entertainment
Businesses Ordinance, page 1).
The Ordinance defines an Adult Oriented Store as “[a]ny establishment having:
(1) [a] substantial or significant portion of its stock in trade in adult books, adult videos
or adult novelties or any combination thereof; or (2) [a]ny portion of its stock in trade in
adult books, adult videos or adult novelties and in conjunction therewith has rooms,
designated areas or facilities for the presentation, observation or use by patrons of any
item sold or rented in such establishment.” (See Exhibit A, City of Belleville Adult
Entertainment Businesses Ordinance, page 4). The Ordinance further defines Adult
Novelties as “(1) [i]nstruments, devices, toys or paraphernalia that are designed for or
marketed primarily for stimulating human genital organs, sexual arousal or
sadomasochistic use; (2) [i]nstruments, devices, gag gifts, toys or paraphernalia that
depict, display or are shaped in the form of specified anatomical areas; and (3) [o]ils,
lotions, gels or creams that are designed for or marketed primarily for use upon specified
anatomical areas and intended for stimulating human genital organs, sexual arousal or

Page 6 of 19

as an aid to enhance or promote specified sexual activities.” (See Exhibit A, City of
Belleville Adult Entertainment Businesses Ordinance, page 3).
Per the Ordinance, the operation of sexually oriented businesses in the city
requires special regulations and supervision. (See Exhibit A, City of Belleville Adult
Entertainment Businesses Ordinance, page 1). These regulations include, but are not
limited to, zoning and licensure requirements. Per the Ordinance, “the resources
available for responding to problems associated with adult entertainment businesses
are limited and are most efficiently and effectively utilized through appropriate zoning
and a licensing and regulatory program.” (See Exhibit A, City of Belleville Adult
Entertainment Businesses Ordinance, page 1). The Ordinance provides that protection
of the public is best served by limiting adult entertainment related uses to a permittable
special use in Light Industry (D-1) and Heavy Industry (D-2) zoning districts in the City.
(See Exhibit A, City of Belleville Adult Entertainment Businesses Ordinance, page 2).
Further zoning requirements are provided in Section 122.09 of the Ordinance. (See
Exhibit A, City of Belleville Adult Entertainment Businesses Ordinance, pages 9-10).
Sections 122.04, 122.05 and 122.08 of the Ordinance provide the licensing procedure for
obtaining licensure for an adult oriented business and the appeal process in the event
of a denial or revocation, respectively. (See Exhibit A, City of Belleville Adult
Entertainment Businesses Ordinance, pages 9-10).
B. Plaintiff’s Business Operations
Shopping Delite is owned and operated by John K. Coil. Mr. Coil has been
described by the U.S. Department of Justice as “a long-time pornography merchant.”

Page 7 of 19

(See

https://www.justice.gov/archive/tax/usaopress/2004/txdv04coik_final_final.pdf) 4.

Mr. Coil owns and operates more than 70 businesses in at least 13 states around the
country. (See Exhibit B, Plaintiff’s Answers and Objections to Defendants’
Interrogatories Directed to Plaintiff). Mr. Coil’s businesses generally provide the same
merchandise at all of their stores. (See Exhibit C, Deposition Transcript of John Coil,
pg. 10). The only real difference amongst Mr. Coil’s businesses is the name, which he
changes based on geographical factors to cater to locals. (See Exhibit C, Deposition
Transcript of John Coil, pg. 10).
Shopping Delite sells almost exclusively adult novelties. [See Doc. 53, Exhibit A,
Photographs of Shopping Delite Merchandise]. Included in, but not limited to, this
merchandise are sex toys, vibrators, massage oils, massage candles, sex games, risqué
costumes, and lingerie. [See Doc. 53, Exhibit A, Photographs of Shopping Delite
Merchandise]. Brands included in, but not limited to, this merchandise include Coochy,
Exposed, Forplay, Bewicked, Sheer Fantasy, and Fetish, amongst others. [See Doc. 53,
Exhibit A, Photographs of Shopping Delite Merchandise].
Per Mr. Coil, Shopping Delite has a policy by which adult oriented items make
up 25% or less of their total stock-in-trade. (See Exhibit B, Plaintiff’s Answers and
Objections to Defendants’ Interrogatories Directed to Plaintiff; Exhibit C, Deposition
Transcript of John Coil, pg. 4). Mr. Coil considers adult magazines, adult DVDs, and
penis shaped health aids as adult oriented material, and nothing more. (See Exhibit B,

See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011) (“We have recognized the
authority of a court to take judicial notice of government websites.”)

4

Page 8 of 19

Plaintiff’s Answers and Objections to Defendants’ Interrogatories Directed to Plaintiff;
Exhibit C, Deposition Transcript of John Coil, pg. 4-5).
B. Shopping Delite’s Application and Denial
On or about August 6, 2021, Mr. Coil applied for a Commercial Occupancy Permit
for Shopping Delite at 4507 N. Belt West, Belleville, IL, 62226, and paid the required
$100 application fee associated with Commercial Occupancy Permits. (See Exhibit D,
John Coil’s Occupancy Permit Application). On or about August 3, 2021, Building
Commissioner Steve Thouvenot inspected the property and noted that while the
property was still stocking shelves, there appeared to be approximately 10 boxes of
edible underwear. (See Exhibit E, City of Belleville E-Mails). On or about August 26,
Mr. Coil was informed by Emma Oldehoeft that the edible underwear he had on display
at the Shopping Delite store at 4507 N. Belt West constitute adult novelties and would
cause the store to be considered an adult entertainment business. (See Exhibit E, City
of Belleville E-Mails). Mr. Coil responded to Ms. Oldehoeft’s email by stating he would
remove the edible underwear. (See Exhibit E, City of Belleville E-Mails).
On or about February 17, 2022, Mr. Coil inquired to Clifford Cross, Director of
Economic Development, Planning & Zoning, regarding the status of the occupancy
permit. (See Exhibit E, City of Belleville E-Mails). On or about February 18, 2022, Mr.
Cross responded to Mr. Coil and informed him that the “retail business” Mr. Coil
claimed he was operating was in fact an “adult oriented business” that was not
permitted in the C-2 zoned district. (See Exhibit E, City of Belleville E-Mails). Mr. Coil
was informed that he was afforded an opportunity to appeal the decision, but he elected
not to. (See Exhibit C, Deposition Transcript of John Coil, pg. 9-10; Exhibit E, City of
Page 9 of 19

Belleville E-Mails). On or about March 7, 2022, Defendant, Shari Blakeslee, mailed via
certified mail a notice of zoning violation to Mr. Coil explaining that his operation of
Shopping Delite at 4507 N. Belt West was in violation of the Zoning Ordinance and he
would need to take corrective measures within 15 days of the notice. (See Exhibit E, City
of Belleville E-Mails).
LEGAL STANDARD
Summary Judgment – Rule 56 of the Federal Rules of Civil Procedure
Parties in a civil dispute may move for summary judgment, which is a way of
resolving a case short of a trial. See Federal Rule of Civil Procedure 56(a). Summary
judgment is appropriate when there is no genuine dispute as to any of the material facts,
and the moving party is entitled to judgment as a matter of law. Id.; Pack v. Middlebury
Comm. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021). A "genuine dispute" exists when a
reasonable factfinder could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those that might affect
the outcome of the suit. Id.
When reviewing a motion for summary judgment, the court views the record and
draws all reasonable inferences from it in the light most favorable to the
nonmoving. Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572-73 (7th Cir.
2021). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d
822, 827 (7th Cir. 2014). The court is only required to consider the materials cited by
the parties, see Fed. R. Civ. P. 56(c)(3); it is not required to "scour every inch of the
record" for evidence that is potentially relevant. Grant v. Tr. of Ind. Univ., 870 F.3d 562,
Page 10 of 19

573-74 (7th Cir. 2017).
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
'the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Even where a
nonmovant fails to respond to a motion for summary judgment, the movant “still had to
show that summary judgment was proper given the undisputed facts.” Yancick v.
Hanna Steel Corp., 653 F.3d 532, 543 (7th Cir. 2011); Robinson v. Waterman, 1 F.4th
480, 483 (7th Cir. 2021). Indeed, a court cannot grant summary judgment in favor of a
movant simply because the adverse party has not responded. Doe v. Cunningham, 30
F.3d 879, 883 (7th Cir. 1994). The court is required, at a minimum, to examine the
movant's motion for summary judgment to ensure he has discharged his initial
burden. Carver v. Bunch, 946 F.2d 451, 454–55 (6th Cir.1991). The court must make a
further finding that given the undisputed facts, summary judgment is proper as a
matter of law. Wienco v. Katahn Associates, Inc., 965 F.2d at 568, supra.
ANALYSIS
Defendants contend that they are entitled to summary judgment on both counts of
the FAC. (Doc. 57). Defendants further assert that Blakeslee is entitled to qualified
immunity. (Id.). This Court will address the defendants’ arguments as presented.
I.

Count I

First and foremost, defendants contend that summary judgment is proper because
plaintiffs cannot establish that the “Adult Oriented Business Ordinance” was
Page 11 of 19

unconstitutionally vague in violation of the First Amendment. (Doc. 57). The First
Amendment to the Constitution states,
“Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.” U.S. Const.
Amend. 1.
A statute may be vague for one of two reasons: (1) if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it prohibits;
or, (2) if it authorizes, or even encourages, arbitrary and discriminatory enforcement.
See Hill v. Colorado, 530 U.S. 703, 732 (2000). The First Amendment challenge to the
constitutionality of adult entertainment ordinance implicates two conflicting public
interests – protecting First Amendment liberties and minimizing any harmful
secondary effects of such businesses. Joelner v. Village of Washington Park, Illinois, 378
F.3d 613, 620 (7th Cir. 2004).
In this case, the ordinance at issue defines an ‘Adult Oriented Store’ as:
“Any Establishment having:
(1) A substantial or significant portion of its stock in trade in adult books,
adult videos or adult novelties or any combination thereof; or
(2) Any portion of its stock in trade in adult books, adult videos or adult
novelties and in conjunction therewith has rooms, designated areas or
facilities for the presentation, observation or use by patrons of any
items sold or rented in such an establishment.” (Ord. 8183-2018).
An ordinance is void for vagueness if its prohibitions are not clearly defined.
Grayned v. City of Rockford, 408 U.S. 104 (108-109 (1972). As such, focus of this analysis
must be on whether “substantial and significant portion of its stock in trade” is
sufficiently defined.
Page 12 of 19

The Seventh Circuit has had occasion to interpret a similar ordinance and has
upheld same. See Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002).
In Pleasureland, a §1983 action was brought against Mishawaka, Indiana, after the city
enacted an ordinance that defined the different types of sexually-oriented businesses,
in pertinent part, as:
“a commercial establishment which has as a significant or substantial
portion of its stock-in-trade or derives a significant or substantial
portion of its revenues or devotes a significant or substantial portion”.
Section 125.02(A)(2) (emphasis added).
Pleasureland contended the Mishawaka ordinance was unconstitutionally vague and
overly broad because it vested complete discretion in the hands of the enforcement
agency and failed to provide the minimal guidelines required for due process. See
Kolender v. Lawson, 461 U.S. 352, 358 (1983). While the Court did not specifically rule
on whether the statutory language was unconstitutionally vague, the Court summarily
rejected the overbroad challenge and cited to Young v. American Min Theatres, Inc., et
al, 427 U.S. 50 (1976).
There is no question that state and local governments may regulate adult
businesses to curtail secondary effects, which in this case are identified in the ordinance
as “detrimental to the health, safety, moral, economic vitality and growth of the city and
its citizens 5.” Renton v. Playtime Theatres, Inc. 475 U.S. 41 (1986). In this case,
defendants proffered rationale supports regulation.
Indeed, the Seventh Circuit has found that the qualitative word “substantial”
does not automatically deem an ordinance unconstitutionally vague. Illinois One News,

5

See §122.01(B)(1) Adult Entertainment Businesses, City of Belleville.
Page 13 of 19

Inc. v. City of Marshall, Illinois, 477 F.3d 461 (7th Cir. 2007). In Illinois One, the
Appellate Court upheld a ruling from this district which analyzed the definition of “adult
bookstore” in an ordinance adopted by the City of Marshall, which used the phrase
“substantial or significant.” Illinois One News, Inc. v. City of Marshall, Illinois, 2006
WL 449018 (S.D. ll. 2006). Indeed, the Southern District stated as follows:
“In this case, the Court finds that any vagueness in the Ordinance's
definition of “adult bookstore” is not so real and substantial as to have
a significant deterrent effect on others wanting to engage in the type
of protected speech purveyed by adult bookstores. First, there is no real
ambiguity in the phrase “substantial or significant” that cannot be
readily cured by a narrowing construction provided by state courts. In
fact, many federal statutes use terms like substantial or significant
without terrible problems. See 15192 Thirteen Mile Rd., Inc. v.
Warren, 626 F.Supp. 803, 820–21 (E.D.Mich.1985). Furthermore, the
evidence established that Marshall was prepared to give further
guidance to businesses seeking to determine how to construe the
Ordinance. The same is true for other words and phrases in the “adult
bookstore” definition that ION believes are vague. Second, the
Supreme Court has recognized a less vital interest in sexually oriented
speech than in speech conveying ideas of social and political
significance. Young, 427 U.S. at 61 (plurality opinion). Third, the
alleged vagueness in the Ordinance is not a qualitative restriction. It
does not have the potential of misleading anyone about the speech that
is allowed or not allowed. Instead, it addresses the amount of speech
that will bring one under the Ordinance's restrictions. Such a
definition is unlikely to totally suppress any specific type of
communication, although it may have an impact on the quantity
someone chooses to purvey. In combination, these factors convince the
Court that the Ordinance's definition of “adult bookstore” does not
threaten the free market in ideas and expression in such a way that
justifies hearing a vagueness challenge on behalf of third parties.
Even if the Court were to entertain such a challenge, it would find that
the ordinance is not unconstitutionally vague. The Seventh Circuit
Court of Appeals has decided that ordinances defining businesses by
whether a “substantial portion of its stock and trade” is devoted to the
certain activities are not unconstitutional. See Pleasureland Museum,
Inc. v. Beutter, 288 F.3d 988, 997 n. 4 (7th Cir.2002) (citing Young, 427
U.S. at 53 n. 5); see also 15192 Thirteen Mile Rd., 626 F.Supp. at 820–
821.”
Page 14 of 19

That same rationale applies in this case. Shopping Delite, via its owner John Coil,
applied for an occupancy permit and, upon refusal, was offered assistance in curing the
rejection. The City was prepared to assist and provide its guidance. 6 Moreover, the
statute did not regulate the speech itself, but rather the quantity of said speech. It is
uncontroverted that no due process rights were violated as Shopping Delite was
provided with instructions on appealing the denial and on being heard. As such,
summary judgment is appropriate as to Count I.

As set forth in the “Material Facts”, Mr. Coil was advised that Shopping Delite was considered an adult
oriented business, that said business was not permitted in the C-2 zoned district, and that he could appeal
the decision.
6

Page 15 of 19

II.

Count II

As set forth infra, there is no question that defendants have an undeniable interest
in combating the adverse secondary effects of adult business. See City of Erie v. Pap’s
A.M., 529 U.S. 277, 296 (2000). Defendants contend that summary judgment as to Count
II is appropriate because plaintiff cannot establish that the “Adult Oriented Business
Ordinance” was an unconstitutional regulation of expressive conduct in violation of the
First and Fourteenth Amendments. (Doc. 57). This Court concurs.
In City of Renton v. Playtime Theatres, Inc., the Court considered the validity of an
adult entertainment zoning ordinance and set forth a three-step analysis for evaluating
the constitutionality of the ordinance. 475 U.S. 41 (1986). First, the Court determined
whether the ordinance banned the business altogether, or whether it merely required
that they be distanced from certain sensitive locations. Id. Next, the Court considered
whether the ordinance was content-neutral or content-based. If an ordinance is contentbased, it is presumptively invalid and subject to strict scrutiny. Id. at 46–47. On the
other hand, if an ordinance is aimed not at the content of the business, but rather at
combating the secondary effects of such business on the surrounding community (e.g.,
increased crime rates, diminished property values), it will be treated as a contentneutral regulation. Id. In Renton, the Court held that the zoning ordinance was a
“content neutral” regulation of speech because while “the ordinance treats [adult
businesses] differently than other businesses .... [it] is aimed not at the content ... but
rather at the secondary effects of such theaters on the surrounding community.” 475
U.S. at 47.
Similar to Renton, the City of Belleville ordinance is content neutral. As such, the
Page 16 of 19

ordinance is subject to intermediate scrutiny to determine whether there is a sufficient
connection between the negative secondary effects and the regulated speech. City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425, 441 (2002). Under this test, the Court
must ask two questions: (1) What is the proposition that a city needs to advance in order
to sustain a secondary effects ordinance; and, (2) How much evidence is required to
support the proposition. Alameda Books, 535 U.S. at 441.
With respect to the first question, the City Council contended that the ordinance
was needed to “protect, preserve, and promote the health, safety, and welfare of the
patrons of such businesses as well as the health, safety, and welfare of the city’s
residents”. Other proffered reasons for the ordinance included “protecting order and
morality, preventing the deterioration of the city’s neighborhoods, promoting retail
trade, maintaining property values, and ensuring sanitary and safe public places. 7”
Clearly, the City’s rationale was premised on the theory that it may reduce the costs of
secondary effects without substantially reducing speech. Ben’s Bar, Inc. v. Village of
Somerset, 316 F.3d 702, 721 (7th Cir. 2003).
With respect to the second question, a sufficient evidentiary connection is
established if the city relies “on any evidence that is reasonably believed to be relevant
for demonstrating a connection between speech and a substantial, independent
government interest. G.M. Enters. v. Town of St. Joseph, 350 F.3d 631, 639 (7th Cir.
2003) emphasis added (quoting Alameda Books, 535 U.S. at 438). Scientific or empirical
evidence is not required. Id. Moreover, a city may rely upon judicial opinions, studies,
experience-based testimony, and crime reports to show secondary effects. R.V.S., LLC.,
7

§ 122.01 (A) Purpose and Findings of Adult Entertainment Businesses
Page 17 of 19

361 F. 402, 7t Cir. 2004). Defendant’s Adult Entertainment Businesses Ordinance
identifies that “[e]vidence from many different sources confirms that the operation of
adult entertainment businesses has historically and regularly been accompanied by
secondary effects that are detrimental to the health, safety, moral, economic vitality and
growth of the city and its citizens. See § 122.01(B). Although the ordinance does not
identify the sources, empirical data is not necessary. G.M. Enters., 350 F.3d 631 at 639
(quoting Alameda Books, 535 U.S. at 438). Indeed, the ordinance identifies numerous
ways in which the adult entertainment businesses can affect the city’s residents and
visitors and also refers to “public studies, cases, and other cities and towns in the U.S.”
Based upon the undisputed evidence, the City of Belleville’s statute is not an
unconstitutional regulation of expressive conduct. The ordinance serves a substantial
government interest and does not unreasonably limit plaintiff’s expressive speech. As
such, defendants are entitled to summary judgment as to Count II.
III.

Qualified Immunity

In their final argument, defendants asserted that summary judgment was proper
as to Blakeslee because she was protected by the doctrine of qualified immunity. (Doc.
57). Qualified immunity is designed to shield government agents “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Moreover, public officials performing
discretionary functions are generally shielded from liability for civil damages. Harlow,
457 U.S. at 818.
To determine whether qualified immunity applies, the district court should look at
Page 18 of 19

all of the undisputed evidence in the record. Green v. Carlson, 826 F.3d 647, 652 (7t Cir.
1987).

If the undisputed facts show that defendant’s conduct violated no clearly

established legal norms, then summary judgment must be granted. Id.
In this case, the evidence is undisputed that Blakeslee mailed a certified notice of a
zoning violation to Mr. Coil, the owner of Shopping Delite, advising him of the need to
take corrective measures. Blakeslee did not inspect Shopping Delite nor did she make
any determination that said business was “adult oriented”. As such, she is entitled to
qualified immunity and summary judgment is, therefore, appropriate.
CONCLUSION
For the reasons set forth above, the Court GRANTS the Motion for Summary
Judgment filed by Defendants City of Belleville and Shari Blakeslee in its entirety. This
action is DISMISSED with prejudice and the Clerk of Court is DIRECTED to close
this case and enter judgment accordingly. As such, all pending court dates are cancelled
and vacated.
IT IS SO ORDERED.
DATED: August 29, 2024

s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge

Page 19 of 19