Posted by: Patricia Salkin | September 8, 2018

Fed. Dist. Court in IL Finds Adult Novelty Store Plausibly Stated a First Amendment Claim Against Village

This post was authored by Matthew Loeser, Esq.

Doctor John’s, Inc. leased a storefront in Cahokia, Illinois, where it planned to open a shop that would specialize in a number of adult novelties. The Village Clerk of Cahokia sent Doctor John’s a letter stating that the Village would not license the business because the B-1 zoning regulation, which governed the proposed address of the store, would not allow for it. Following this, Doctor John’s sued the Village and its mayor, Curtis McCall, under 42 U.S.C. §1983, alleging violations of the First, Fifth, and Fourteenth Amendments.

Doctor John’s first claimed that the Village violated the company’s First Amendment rights by denying Doctor John’s a business license pursuant to the “adult uses” zoning ordinance. This ordinance prohibited any adult-use establishments from opening within 1,000 feet of any school, public park, playground, day care center or facility, public housing property, church or other religious facility or institution, government building, institution of higher education, cemetery, or any establishment which was licensed to sell, dispense, or deliver alcoholic beverages. The Court found that since the ordinance could theoretically result in a ban on adult-use establishments in the Village, Doctor John’s stated a plausible First Amendment claim.

Doctor John’s next alleged that the Village deprived it of its right to procedural due process. Here, the Court noted that Doctor John’s ignored the protected interest prong in all of its papers, and the Village omitted the issue in its motion to dismiss. While that error alone was enough to warrant dismissal of the procedural due process claims, the Court also noted that Doctor John’s also ignored the fact that a state mandamus action could have materialized as “prompt judicial review,” defeating his theory here altogether.

Doctor John’s lastly contended that it had standing to assert the sexual privacy rights of its customers concerning the sale, possession, and use of sexual devices pursuant to the Fourteenth Amendment’s Due Process Clause. Here, however, both cases cited by Doctor John’s dealt with criminal prohibitions on the sale of sexual devices. As the Village of Cahokia did not attempt to throw the owner of Doctor John’s in jail for selling sex toys, Doctor John’s failed to carry its burden in demonstrating that it had standing to bring a substantive due process claim, so the Court dismissed it without prejudice.

Doctor John’s, Inc v Village of Cahokia, 2018 WL 4283038 (SD IL 9/7/2018)


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