The Law and the Skin Trade in the Windy City

Who Says Adult Entertainment Can’t Win in Court?

By J. D. Obenberger, Attorney at Law
© MM J. D. Obenberger, All Rights Reserved

While it is impossible to lay down fast and firm rules that will help everybody in every arrest, there are a few basic principles that will help the large majority of people most of the time they get arrested. Obviously, you should consult with a lawyer at the first chance you have to get particular and specific advice for the situation you find yourself in.

There’s some good news out of the Illinois Courts to report this month.

Yes, adult entertainment business really can win cases here. There are judges in the Illinois Appellate Court with the courage to apply the law fairly, even if it means that the adult operator comes out on top.

There are many who think that this industry can never win in state court. If I’ve heard it once, I’ve heard it fifty times the past three or four years. It’s the “Doom and Gloom” speech that comes from the owners of adult businesses: They’ll tell you that the game is stacked against them, that, in the end, they have no rights that any Court will respect, and that the rules of law that apply to everybody else are just ignored when it comes to their kind of businesses. I hear variations on this theme from owners across the country every August at the Exotic Dancer Magazine convention and show in Las Vegas, and I hear it regularly here in Chicago.

And it’s just not so. I want to tell you about an appeal that I wrote, and the result that just came down a few days ago.

You might remember Soft Touch Spa in Oswego, a nude massage parlor that used to advertise in the Gentleman’s Pages. It was evicted by the Kendall County Sheriff last August 25, on an order of possession in favor of the landlords entered by the Circuit Court in Kendall County.

Soft Touch’s landlords, Harold and Rebecca Oliver, the owners of the Mason Square Shopping Center in Oswego where Soft Touch was located, filed a suit last year last year, claiming that the business was illegal and immoral, even though no criminal charges ever arose in that establishment. They claimed that they never knew that they were renting to what would become “one of those kind” of massage parlors, that is an adult entertainment spa.

None of the three written Complaints filed with the court ever bothered to claim that any of what Soft Touch did came as a surprise to the Olivers, but that’s what they told the judge at trial. And they complained that the spa violated a smoking ordinance, that employees had private parties in the spa, that non-union labor was used, and just about every other technical violation that could be imagined. And when the Soft Touch operator tried to explain to the judge that Harold Oliver never was told that this establishment was to be “therapeutic”, the Olivers' attorney objected.

Jim Jensen, a lawyer from Yorktown in Kendall County, represented Soft Touch at trial.

The State’s Attorney in Kendall County, Tim McCann, took the stand to testify in favor of the landlord and against Soft Touch, stating that he thought that it had a reputation for immorality and illegality, though even after a sheriff’s investigation, he couldn’t point to anything done there that broke the law. The local community development director took the stand and said the same thing. A dentist who rents from the Olivers said that his patients were concerned for their safety because of the massage parlor.

To the credit of the trial judge, he found against the landlords on the large majority of the allegations and dismissed a Count alleging that criminal laws were violated. He also refused attorney’s fees to the landlords.

But he did find for the landlords on the basis that the name of the shopping center was improperly used in advertising and because of immoral conduct that hindered the shopping center and annoyed the other tenants. He entered judgment for back rent and penalties, and he gave the landlord an order of possession. He “stayed” that order briefly, and during that time, the judge heard further legal arguments that the landlords had no right to terminate the lease until they gave the spa owner a chance to respond to landlords’ complaints and “cure” any violation of the lease. He denied the motion to vacate the judgment on August 24, 1999, and the eviction was to proceed the next day.

That’s when my firm got involved. An emergency application for a stay in hand, I immediately drove through a thunderstorm, from the Kendall County Courthouse at Yorktown, up the valley of the Des Plaines River to Elgin, to file the application for a last-minute stay of execution before the Appellate Court closed.

The Appellate Court denied any further stay of an eviction at about 11:15 a.m. the next morning, shortly before the trial judge’s stay expired. And on a rainy and dismal afternoon, at noon on August 25, 1999, the Sheriff came to evict Soft Touch, and the establishment closed. A picture of the owner, wet from the rain, scrambling to get his possessions into a U-Haul trailer ahead of the Sheriff, ran in the Aurora Beacon-News. His dream of owning a business, the money he had invested in building the place, in advertising it, and all of his hopes seemed to dissolve in that rain, and in the humiliating presence of the landlord and the press.

On June 27, 2000, the Illinois Appellate Court reversed the Circuit Court in Kendall County, setting aside that judgment on all counts, setting aside judgment in favor of the landlords for possession and penalties, and the Appellate Court sent the case back to the Kendall County judge to get some justice finally for Soft Touch. It was a total victory for the spa owner. The Appellate Court roundly rejected the landlords’ claim that they should get attorney’s fees and reversed even the judgment for back rent. (Case No. 2-99-0957).

Now, it will be Soft Touch’s chance for justice.

The Appellate Court found that the Kendall County Court erred by misunderstanding the lease: Soft Touch could not be kicked out of Mason Square Shopping Center, its lease could not be terminated, unless the Olivers notified the spa owner that the lease was violated (in their opinion), and unless they gave Soft Touch a chance to conform to the lease. That kind of bare-bones decency is something they never offered Soft Touch, and in that respect, it was their illegal termination that violated the lease.

Kendall County is a strange place. You will remember, from earlier columns in this series, that Kendall County prohibits adult entertainment in areas zoned for agriculture. I guess that they’re afraid that the corn will wilt from Dirty Debs syndrome or the cows will go dry from Anabolic Fever if the adult-oriented tapes are too close to them. It was Kendall County that, for many years, waged a never-ending war against Denmark Books, the little pornshop on the prairie, that continues to sell sexually-oriented expressive materials. Denmark is still there, but the cornfields are still off limits. I am sure that they could find some urban planning and zoning expert who would so testify for $200 per hour of the bovine peril that could arise from the dissemination (yes, I intend the pun) of material with frankly sexual content.

That’s what “secondary effects” first amendment litigation is all about these days: Find an expert, pay him enough to say that there are pernicious secondary effects to adult-oriented expression, rely on the opinion regardless of whether it makes sense, pass a law to put the adult operators out of business, and hope that no elected judge has the courage to invoke the wrath of the authoritarian elements of the conservative movement (a group that, some of us in the legal profession concentrating in first amendment law call “Bible Thumpers”) to call this malarkey just what it is. I did grow up in Wisconsin, I do know a thing or two about cows, and nothing I ever saw drudging though the State Fair Cow barns in West Allis with my Dad on our annual obligatory pilgrimage as Wisconsinites to the high shrine of cowdom ever suggested to me that these animals were squeamish about bodily functions.

Keep your eyes open for more news on this front. My office has two challenges to the DuPage County Zoning Ordinance now pending, one an appeal in the Second District of the Illinois Appellate Court, and another in the U. S. District Court for the Northern District of Illinois. That’s two opportunities to have the doors of DuPage County opened for free expression. We expect decisions in each case before the end of Summer.

Eight hundred thousand people live in DuPage County, one of the richest, most Republican, and most ferverently Caucasian counties in the nation. Those rich, more-Christian-than-thou Republicans who govern it think of it as God’s Country: The home county of Billy Graham and Red Grange. They probably think that having good interracial relations means inviting Italian-Americans to the County Fair. And maybe some Greek-Americans. And they hesitate, wondering if all that is too bold of an overture.

I wouldn’t say that falsely convicting innocent Hispanic people of the murder and rape of nine-year-old girls and sending them to death row is a favorite pastime out in Wheaton, but they certainly do it more than one would expect. Three juries convicted Rolando Cruz, and he just didn’t do it. Thirty-six jurors were all convinced “beyond reasonable doubt”. I guess that means that there’s a bit of a chasm between what the law considers reasonable and what passes for reasonable in the DuPage County Courthouse.

They have one adult-oriented bookstore, Zebulon that by almost miraculous circumstance has held on through intense legal efforts over the years to close it. The 1986 Zoning Code so limits sexually explicit expression that the County’s lawyers have admitted in Court that there is no site in the land under their jurisdiction and laws where any adult business could locate without the construction of a special access road. Does that sound like “content-neutral” legislation affecting speech to you? What if you had to build a road if you wanted to publish a newspaper or open a church or temple or hold a political rally?

Regular readers of this column will know that the Constitution requires at least a reasonable opportunity for adult businesses to open, on a fair footing with other kinds of businesses. But, the County Fathers of DuPage say it’s not our fault that there is no land for adult entertainment under their laws. They say that annexation has taken away any land that could be used for this purpose, and that they are powerless to control annexation. I love to hear this kind of argument from the guys who accuse everyone else of failing to take responsibility for their decisions.

It is their choice to regulate adult entertainment. No one forces them to do that.

It is their choice to segregate it in industrial zones. There is no gun to their heads.

It is their choice to separate it by 1,000 feet from any residential land.

And it is clearly their choice to keep laws on the books that offend the Constitution.

With judicial courage to enforce the Constitution, this Summer, the DuPage County Adult Use Zoning Ordinance should fall.

This article is written only to generally inform the reader, and this article establishes no attorney-client relationship. If you have a legal question or a case, get in touch with an attorney and retain him. If you are arrested, do so at once.

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 xxxlaw@execpc.com