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Tuesday, March 17, 2015

Village Ordinances Banning Public Nudity and Alcohol Consumption Reviewed by 7th Circuit

In celebration of St. Patricks Day, we give you booze....well, we give you a booze-related case.

The Village of Dix, Illinois, is a "dry" community, where the sale of alcohol is banned.  In 2010, a nightclub called Foxxxy Ladyz opened up in Dix. The club featured nude dancing and allowed patrons to bring in their own alcoholic beverages (BYOB).  A few months after the nightclub opened, the Village passed 3 ordinances that affected Foxxxy Ladyz business.  The first ordinance banned open containers of alcohol in public places within the village (public places included any privately owned property open to the public). The second ordinance prohibited public nudity in the Village. The third ordinance prohibited the possession of liquor in public accommodations. All three ordinances stated they were aimed at preserving "social order, health, welfare, and safety of citizens."
A few months after the ordinances went into effect, the Dix Village Board notified Foxxxy Ladyz that its continued operations violated the ordinances.  The owner of Foxxxy Ladyz then filed suit in federal court, claiming that the public nudity ban violates the First Amendment and that the Village lacked authority to enact the alcohol bans.  

The district court dismissed the complaint, and the owner appealed to the Seventh Circuit Court of Appeals.  That court recently issued an opinion in Foxxxy Ladyz Adult World, Inc. v. Village of Dix (7th Cir., March 10, 2015).

First, the 7th Circuit agreed with the district court's dismissal of the plaintiff's challenge to the ordinances banning alcohol.  The Court determined that the Village had authority under the Illinois Liquor Control Act to regulate the consumption of alcohol in public.  Specifically, the Court held that a municipality that lawfully banned liquor licenses altogether has implicit authority to impose additional restrictions that advance its status as a dry community. That is what Dix did in enacting ordinances prohibiting public consumption of alcohol and open containers in public. The Court also rejected the plaintiff's argument that the alcohol ban violated its constitutional rights, finding no constitutional right to consume alcohol while watching  a nude show.

However, with respect to the nudity ban enacted by Dix, the 7th Circuit reversed the district court's dismissal of this claim.  The court applied the constitutional standards established by the U.S. Supreme Court for nude dancing and other public nudity regulations, finding that Dix did not support its ordinance with sufficient evidence that nude dancing generates adverse secondary effects to satisfy these constitutional standards.  Dix offered no data or studies to indicate that nude dancing or other publicly nudity would cause any significant harm that would outweigh the burden on protected freedom of expression rights.  As a result, the Court remanded the case back to the district court for further proceedings, and to allow Dix to produce support for its nudity ban.

Post Authored by Julie Tappendorf


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