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Wright v. County of Du Page

Case Date: 09/13/2000
Court: 2nd District Appellate
Docket No: 2-99-0743 Rel

13 September 2000
                                                                                      No. 2--99--0743

______________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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WARREN J. WRIGHT, d/b/a Lake
Street Spa and Spa 64; LAKE
STREET SPA, INC.; THOMAS
BOGAERT, d/b/a Spa 64; and
SPA 64, INC.,

          Plaintiffs and Counterdefendants-
          Appellants,

v.

THE COUNTY OF DU PAGE,

          Defendant and Counterplaintiff-
          Appellee.

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)		 Appeal from the Circuit Court
of Du Page County.







No. 98--CH--572


Honorable
John W. Darrah,
Judge, Presiding.

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PRESIDING JUSTICE BOWMAN delivered the opinion of the court:


Plaintiffs-counterdefendants, Warren Wright, d/b/a Lake Street Spa and Spa64; Lake Street Spa, Inc.; Thomas Bogaert, d/b/a as Spa 64; and Spa 64, Inc.(collectively the Spas), appeal from the judgment of the circuit court of Du PageCounty permanently restraining and enjoining the Spas from using the property attheir respective locations as adult businesses. Defendant-counterplaintiff, theCounty of Du Page (County), had filed a second amended counterclaim seeking suchrelief.

On appeal the Spas contend that (1) they lawfully located under the zoningprovisions in effect at the time they opened and therefore are entitled tocontinue to operate as prior nonconforming uses; (2) the trial court erred indetermining that the activity conducted at the Spas was not protected under thefirst amendment free speech clause (U.S. Const., amend. I); and (3) the trial court erred in upholding the constitutionality of the County's adult business usezoning provisions and in enjoining the operation of any adult business use at theSpas' respective locations, as the provisions were overly restrictive and a priorrestraint on freedom of speech.

The Spas commenced their operations in 1996 offering services that includedtouching, rubbing, and application of pressure by female employees to the bodiesof paying customers. The Spas charged various prices for their massagesdepending on the duration of the visit and the state of undress of the employee. The massages were not performed for therapeutic purposes. Prior to and during1996 and continuing to the present time, the Du Page County Zoning Ordinance (DuPage County Zoning Ordinance (1997)) provided for adult uses in light industrialdistricts (I-1) and in general industrial districts (I-2).

Lake Street Spa is located at 24W464 Lake Street in unincorporated Du PageCounty in a local business district (B-1). The north side of the spa's propertyis adjacent to property that is zoned residential. Spa 64 is located at 21W500North Avenue in unincorporated Du Page County in a general business district (B-2). The spa is about 300 feet from a single-family residence and 200 feet froma multiple-family residence. Neither the surrounding zoning classification northe residential characters where the Spas are located have changed since thecommencement of their operations.

Initially, litigation began when the County filed an administrativecomplaint against the Spas for violations of the Du Page County massageestablishment license ordinance. The Spas then filed a complaint in the circuitcourt seeking an injunction to preclude an administrative hearing. The Countywithdrew its administrative complaint and filed a counterclaim, bringing,essentially, the same cause of action as the cause in the administrativecomplaint. The County sought injunctive relief to enjoin the Spas fromconducting massage establishments at their respective locations until each spaobtained a massage establishment license. In opposition to the County's request,the Spas argued that, because the massages given at their establishments werepurely recreational and not therapeutic, they were not subject to regulation bythe massage establishment license ordinance and, therefore, could not beoperating in violation of that ordinance. The parties had previously enteredinto a stipulation stating that the Spas did not perform therapeutic massages attheir establishments but, rather, "erotic entertainment performances." The trialcourt denied the County's request for injunctive relief.

Subsequently, the County filed a second amended counterclaim, seeking tohave the Spas permanently enjoined from conducting their activities. The Countycontended that the Spas' use of their property constituted an adult use asdefined in the Du Page County Zoning Ordinance (ordinance) and was permitted onlyin I-2 districts and conditionally permitted in I-1 districts. Additionally, theCounty contended that each use was illegal because it was being conducted within500 feet of residential districts.

The Spas filed a second amended complaint, seeking a declaration that theycould continue in business where they were located. The Spas alleged that, atthe time they commenced their operations, they were specifically permitted toperform such activities under the ordinance and therefore enjoyed the protectionafforded to a prior nonconforming use. The Spas reasoned that they were apermitted use because they were massage parlors. The Spas maintained that theirbusiness use qualified them as "masseurs" and that the ordinance expressly andspecifically permitted masseurs to locate as permitted uses in B-1 and B-2 zoningdistricts. The Spas asserted that, if the ordinance was found to bar their useswhere located, the Spas were otherwise protected by the first and fourteenthamendments to the United States Constitution (U.S. Const., amends. I, XIV) andsection four of article 1 of the Illinois Constitution (Ill. Const. 1970, art.I,