UPFRONT TAVERN & GRILL, INC., Plaintiff, v. CITY OF CHICAGO,

Defendant.

Case No. 94 C 3061

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

1994 U.S. Dist. LEXIS 6780

May 19, 1994, Decided

May 24, 1994, Docketed

JUDGES: [*1] Williams

OPINION BY: ANN CLAIRE WILLIAMS

OPINION

MEMORANDUM OPINION AND ORDER

Plaintiff Upfront Tavern & Grill, Inc. ("Upfront

Tavern") brings this action against the City of Chicago

("City") seeking to enjoin the City from restricting its

operation of a Chicago tavern featuring live, nude

entertainment. Upfront Tavern alleges that the City's

enforcement of its licensing and zoning laws is

unconstitutional. (Complaint at 7-9). This case is

presently before the court on plaintiff's Motion for a

Temporary Restraining Order and defendant's Motion to

Dismiss on abstention grounds. For the reasons stated

below, the defendant's Motion to Dismiss this case is

granted. Plaintiff's Motion for a Temporary Restraining

Order is stricken as moot.

Background

Plaintiff Upfront Tavern operated a bar featuring

live, nude entertainment in the downtown area of

Chicago from June 1992 to December 1993. In two

separate orders entered in October and December 1993,

the City revoked all of plaintiff's liquor and business

licenses. (Def. Ex. A, B). In its May 17, 1994 complaint,

plaintiff alleges that on May 2, 1994, Upfront Tavern

(operating under the name Options Unlimited) altered its

format and recommenced operations [*2] pursuant to a

valid cabaret amusement public place - Class III license

issued by the City. (Complaint at 3). On May 9, 1994, the

City closed the Upfront Tavern citing plaintiff's failure to

obtain all of the required licenses to operate its business.

(Complaint at 3-5; Mo. to Dismiss at 2).

Plaintiff filed the instant suit on May 17, 1994.

Alleging that the City has established a de facto policy to

impermissibly restrict or eliminate activity protected by

the First Amendment, plaintiff seeks a court order

enjoining the City from "preventing Plaintiff's

presentation of protected nude expressive dancing to its

willing adult customers." (Complaint at 9). Plaintiff also

seeks a declaratory judgment "establishing that

Defendant's policy of arbitrarily restricting or eliminating

protected nude expressive dancing is unconstitutional."

(Id.). On May 18, 1994, plaintiff filed the emergency

motion for a temporary restraining order presently

pending before the court.

On May 18, 1994, one day after plaintiff filed the

instant suit, defendant City filed suit against Upfront

Tavern in the Circuit Court of Cook County, alleging that

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Upfront opened for business in May 1994 in violation of

[*3] City licensing and zoning laws. (Def. Ex. C). That

same day, defendant filed an Emergency Motion to

Dismiss plaintiff's federal suit. In its Motion to Dismiss,

defendant argues that this court should abstain from

hearing plaintiff's case.

Discussion

In Younger v. Harris, 401 U.S. 37, 43-44, 27 L. Ed.

2d 669, 91 S. Ct. 746 (1971), the Supreme Court held that

principles of equity, comity and federalism require a

federal court to abstain from hearing a federal action

challenging the constitutionality of a state criminal statute

while the state is prosecuting the federal plaintiff in state

court under that same statute. The Court has since

extended what is now generally referred to as the

Younger abstention doctrine to civil suits that are

criminal in nature. See Huffman v. Pursue, Ltd., 420 U.S.

592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975); Trainor v.

Hernandez, 431 U.S. 434, 52 L. Ed. 2d 486, 97 S. Ct.

1911 (1977). On numerous occasions, courts within this

circuit have applied the Younger [*4] abstention doctrine

to suits like this one involving constitutional challenges

to local zoning and licensing ordinances restricting the

operation of businesses engaged in adult materials and

entertainment. See, e.g., Mannheim Video, Inc. v. County

of Cook, 884 F.2d 1043 (7th Cir. 1989); Ciotti v. County

of Cook, 712 F.2d 312 (7th Cir. 1983); American Nat.

Bank v. Parkman, 702 F. Supp. 168 (N.D. Ill. 1988).

Where the commencement of the state court

proceeding follows the filing of plaintiff's suit in federal

court, the court should look to two factors in deciding

whether abstention is appropriate. First, the court must

determine whether the federal plaintiff will have an

adequate opportunity to raise its constitutional challenges

in the state proceeding. Mannheim Video, 884 F.2d at

1045 (citing Middlesex County Ethics Committee v.

Garden State Bar Ass'n, 457 U.S. 423, 73 L. Ed. 2d 116,

102 S. Ct. 2515 (1982)). Second, the court must consider

the progress of the federal action. "The federal action

should [*5] be dismissed in favor of the state action if

there have been no 'proceedings on the merits . . . in the

federal court.'" Mannheim Video, 884 F.2d at 1045

(quoting Hicks v. Miranda, 422 U.S. 332, 45 L. Ed. 2d

223, 95 S. Ct. 2281 (1975)).

Here, neither party contends that plaintiff will be

unable to raise his constitutional challenge to the City's

enforcement of its zoning and licensing laws in state

court. Nor have there been any proceedings on the merits

of this case. Abstention under Younger is, therefore, not

only appropriate but required.

Accordingly, the court grants defendant's motion to

dismiss on abstention grounds. Plaintiff's Motion for a

Temporary Restraining Order is stricken as moot.

ENTER:

Ann Claire Williams, Judge

United States District Court

Dated: MAY 19 1994

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