The Law and the Skin Trade in the Windy City
The Little Pornshop on the Prairie
By J. D. Obenberger, Attorney at Law
© 1998 J. D. Obenberger, All Rights Reserved
So, you want to open a dance club, that is, a strip joint or, in 1990's terms, a "Gentlemen's Club". Or an adult book store. Or a massage parlor.
This a subject I get phone calls about. If it was an such an easy proposition to open, they wouldn't be calling a lawyer, and so when they do call, I know that eight out of ten times, the "L Question" will be coming up.
They want to know if I have a Location in mind for an adult business that conforms to all zoning laws and other regulations and where they can (hopefully) open legally and make a profit without the prospect of years of expensive litigation.
You see, that's the $100,000 question in the retail end of the adult business: Where can I open?
And it is never an easy question to answer. The shortest accurate answer that I know, is that if you are looking for a municipality or county that will welcome your proposed sexually-oriented business with open arms, and where the Mayor will bring the Chamber of Commerce Brass Band in to serenade your customers on Opening Day, you will be hunting for that location for a very long time, indeed.
Elected officials know that the safest position with the voters is one that keeps adult businesses out. No politician in the Chicago metropolitan area ever lost an election because he or she was too tough on sexually-oriented businesses. And most of them are afraid that the voters will replace them if an adult business "gets away" with opening during their watch. So, if you can find a municipality that doesn't treat adult businesses with something that closely resembles an outright ban, be assured that immediately after you apply for building and business permits, it will pass laws designed to make your business illegal or regulate it so that it can't possibly make a profit. They will do this to get rid of you and to discourage others who try.
So do not be surprised, if in a particular rural County, on the fringes of the Chicago area Southwest, you find a zoning requirement forbidding adult uses on any land zoned for agricultural uses and do not be shocked to learn that you must locate your hypothetically-possible adult business at least 1,000 feet away from any other use, including farm fields. What danger to the County exists, you wonder, from a porn shop in a pasture? Do the County Fathers think that the cows will catch some mysterious bovine affliction and dry up from Dirty Debs Syndrome? That the corn will start to rot with Anabolic Plague? Rather, we think the object is simply to make it next to impossible to locate any adult business in that County.
Another, more affluent County to the North has passed an ordinance prohibiting customers from tipping exotic dancers personally, insisting that all tips go into a receptacle, and requiring that performers dance only on a platform at least one-and-one-half feet high, separated from the customers by a barrier at least three feet in height and separated from customers horizontally by at least eight feet. The dance establishments- - and the adult bookstores, too - - must close nightly at midnight, open no earlier than noon, and must remained closed on all State and Federal Holidays, such as Columbus Day, Pulaski Day, President's Day, Rev. Martin Luther King's Birthday, and New Years Day. This is all without alcohol at the strip joints, of course. Meanwhile, the bars and taverns that do serve intoxicating liquor can stay open until two a.m.. Why are these regulations passed? With a straight face, the County Fathers will talk about the suppression of vice. The real aim is transparent, and was actually admitted by one of the lawyers who drafted the Ordinance: The destruction of any opportunity for the dancers or for the operator to make a profit at lawful dancing. That County's lawyers believe, in error, that the County can legally kill the businesses by "only" making them unprofitable. We'll see about that.
Even in Chicago itself, an immense City, it is exceedingly difficult to find a legal location for an adult use because of the "separation" requirements existing in the Chicago Zoning Code, especially when, as you must, you also consider the effect of a State Statute that went into effect on January 1, 1998. Under the Chicago Zoning Code, such a business must be located at least 1,000 feet from any land zoned for residential use, from any other adult use and from some other specified zones and uses. State laws partially overlap some of the turf covered by the separation requirement of the City Ordinance but also require separation of an adult use from some other kinds of uses that are not mentioned in the City Ordinance.
When both are read together, in addition to the separation from residentially zoned land and other adult uses I just mentioned, you must also chose a location for an adult business at least 1,000 feet from any place of worship or any place of education, at least 1,000 feet away from any cemetery, public housing, park, or day care center. Because of the way the City of Chicago is laid out, with commercial zones located on arterial streets, in the main backing up on residential zones at the rear of the commercial lots, it is hard to find commercial space in much of the City that is not within 1000 feet of a residentially zoned lot. Couple this with the other separation requirements of City and State law, and the task of finding a becomes almost impossible.
Unless you plan to float a barge on Lake Calumet and bring your dancers and customers in by canoe, it's difficult to find a site that qualifies for adult use in the City of Chicago. You can locate a tavern or a pool hall or a hot pillow motel right across the street from a cemetery, you can sell liquor in a store next to a housing project late on a hot summer night, but under State law, you can't locate an adult business within approximately one fifth of a mile of the cemetery boundaries and the existence of even a correspondence school tucked away in the fifth floor of an office building effectively blocks adult entertainment for blocks around such a business.
The lawyers who advise City Councils and Village Boards and County Boards know, or at least should know, that, except in the most rare of cases, if ever, they can't just ban adult-expression oriented businesses in the jurisdiction. Of course, that is exactly what they want to do, and so in a pretty cynical - - and I believe often in a dishonest and immoral fashion - - they use municipal zoning and regulating power to approximate the same result as an all-out ban.
And so the little game that plays itself out in court is properly entitled "How far can we go in the direction of eliminating any chance of erotic expression and entertainment without violating the Constitution?"
I do not believe that the First Amendment is a game, and I detest the practice by public officers, sworn to uphold the constitution, of resorting to the use of cynical pretexts and sly subterfuges and disingenuous ruses to eradicate erotic expression. Local government is given the power to zone land and to license businesses to promote the public health, safety, and welfare. The misuse of those legitimate governmental powers to zone and to license, when based on the erotic content of the expression, and when intended to drive that expression out of our community, is a repugnant to the LIBERTY for which America and its constitutional form of government are dedicated.
Why has our nation stamped the word LIBERTY on every American coin for a hundred years? Why is a statue of "Liberty", represented as a crowned woman, holding a brilliant torch enlightening the world, the symbol we chose to greet those who come to our nation by ship to the harbor of the great city of New York? Why have we chosen to represent her to new arrivals as what we, as a nation, are all about?
What kind of liberty is it that is at the core of our national values? Liberty from what? Liberty from whom? Liberty is an empty and meaningless word that means nothing by itself, but takes on significant meaning only when we answer those questions. The historical answer to those questions, in the context of two hundred years of American constitutional government, is that we mean the Liberty of the individual in his or her personal affairs from the unwarranted intrusion and interference of the government: We mean personal autonomy, personal privacy, and the right to make our own religious and moral decisions.
What liberty we possess, it should never be forgotten, was purchased by the sacred blood of countless nameless and faceless soldiers, many of them mere boys, who made their ultimate sacrifice for our liberty, soldiers who consecrated battlefields by shedding that blood, from Bunker Hill to Fredricksburg, from San Juan Hill to the Argonne Forrest, from the Bataan Peninsula and the beaches of Normandy to Inchon, the Pusan Perimeter and the steamy Mekong Delta. I dare you to walk the fields of the military cemeteries, as I have, at Arlington or at the Punchbowl, and not feel deeply the debt we owe those young men for our Liberty (or what portion of it has managed to survive). Though we can never fully repay them, we can and must try to pay the debt. When we fight in the courts to support principles of personal liberty against overreaching government control, and to elect to office men and women dedicated to the preservation, protection, and expansion of personal liberty, we then start to pay that debt best.
And so, when we fight the good and decent and highly moral battle against those who wish to eradicate adult erotic entertainment, we are engaged in the most American of all tasks. In the face of ever increasing government involvement in our personal lives, we as Americans must dedicate ourselves anew to the principle that liberty shall not perish from the earth.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is firstname.lastname@example.org