Cathy's Tap, Inc. v. Village of Mapleton (65 F. Supp. 2d 874, 1999)

ORDER

MIHM, District Judge.

This matter is before the Court on Defendants’ Motion to Dismiss Counts I, II, and IV of the Third Amended Complaint and Motion to Dismiss Count III of the Third Amended Complaint. For the reasons stated herein, the Motion to Dismiss Counts I, II, and IV is GRANTED IN PART and DENIED IN PART, and the Motion to Dismiss Count III is DENIED.

I. Factual Background

Between April, 1996, and March 31, 1998, Plaintiff (“Cathy’s Tap”) did business as a retail liquor licensee in Mapleton, Illinois. In an attempt to diversify and expand its business, Cathy’s Tap started doing business on or about April 1, 1998, as an adult entertainment or “adult cabaret” establishment, as subsequently defined by the Village of Mapleton. Cathy’s Tap continued to serve alcoholic beverages pursuant to its previously issued liquor license and also provided “entertainment in the form of non-obscene live nude dancing by females.” (Third Amended Complaint, ¶¶ 1-2).

On or about April 14, 1998, the Mapleton Board enacted Ordinance 98-02, which went into effect on June 9, 1998. According to Cathy’s Tap, the Ordinance was enacted “either on [the Board’s] own initiative or as the result of lobbying efforts of members of various religious groups” both in and outside of Mapleton. (Id., ¶ 7) Under § 18.B of the Ordinance, adult cabaret establishments featuring topless dancers or waitresses are prohibited from selling alcoholic beverages. (Id.). When Ordinance 98-02 was enacted, the Mapleton Board acknowledged that as of that date, there were two licenses for the sale of alcoholic liquor in Mapleton, one being Cathy’s Tap. (Id., ¶ 15; Ord. 98-02 § 4). According to Cathy’s Tap, “the purport and effect of Ordinance 98-02 was to single out and make unlawful the sale of alcohol by the Plaintiff in conjunction with the Plaintiffs providing expression of non-obscene erotic communications in the form of live non-obscene nude dancing....” (Third Amended Complaint, ¶ 14).

“[E]ither on its own or pursuant to the lobbying efforts of various religious groups” both in and outside Mapleton, Ma-pleton enacted a second ordinance, Ordinance 98-03, which went into effect on August 3, 1998. (Id., ¶ 9). Pursuant to the Ordinance, employees of adult entertainment establishments are prohibited from appearing or performing completely nude, performing “specified sexual activities,” and performing “straddle dances.” (Id., ¶¶ 9 and 12; Ord. 98-03 §§ 3(T), 3(U), and 11(F)(1)). Ordinance 98-03 also provides for the creation of an Adult Use Commissioner and sets forth regulations relating to “adult establishment licenses.” It further provides existing establishments, such as Cathy’s Tap, with a grace period of 60 days to secure an appropriate license. (Third Amended Complaint, ¶ 11; Ord. 98-03 § 5(F)(1)).

Cathy’s Tap applied for a renewal of its liquor license on or about May 29, 1998, and on or about June 30, 1998, secured a renewal. According to Cathy’s Tap, it had advised Mapleton prior to the renewal date that it was providing non-obseene, live nude dancing performed by females. On August 5, 1998, the Liquor Commissioner entered an order pursuant to § 18 of Ordinance 98-02 revoking the license. (Third Amended Complaint, ¶ 18) .

On or about August 4, 1998, Cathy’s Tap procured an application for an adult use license pursuant to Ordinance 98-03. After being denied its first application for an adult use license, Cathy’s Tap submitted another application, which was denied in or about February, 1999. (Id., ¶ 20).

In Count I of the Third Amended Complaint, Cathy’s Tap alleges that the Ordinances serve as bills of attainder, which are prohibited by Article I, § 9, Clause 3 of the United States Constitution. Specifically, Cathy’s Tap alleges that Ordinance 98-02, which led to the revocation of the liquor license, and Ordinance 98-03, which prohibits Cathy’s Tap from offering nude dancing, legislatively adjudicated it to be guilty of a prohibited activity. (Id., Count 1, ¶ 21).

In Count II, Cathy’s Tap alleges that Ordinance 98-02 deprives it of its First Amendment right “to ’ sell liquor by the drink in conjunction with the provision of non-obscene erotic message in the form of non-obscene, live nude dancing” (See id., Count II, ¶ 21). Cathy’s Tap also alleges in Count II that Ordinance 98-03, by prohibiting live, nude dancing, violates the First Amendment right to freedom of expression. (Id., Count II, ¶ 22).

In Count III, Cathy’s Tap alleges that both Ordinances constitute an unlawful prior restraint. (Id., Count III, ¶ 21).

Lastly, in Count IV, Cathy’s Tap alleges that the Ordinances violate the Establishment Clause under the First Amendment because they are “the substantial result of pressure and efforts of individuals and religious organizations” which oppose nude dancing and/or the sale of liquor by the drink. (Id., Count IV, ¶ 19).

II. Procedural Background

On November 13, 1998, Defendants filed a Motion to Dismiss Cathy’s Tap’s Second Amended Complaint. On January 6, 1999, Cathy’s Tap filed its Response, and oral arguments were heard by the Court on Defendants’ Motion on February 1, 1999. On February 22, 1999, the Court entered a Minute Order directing Defendants to reply to Cathy’s Tap’s argument in its Response that the Ordinances in question constitute an unconstitutional prior restraint in violation of the Free Speech Clause of the First Amendment. Although Cathy’s Tap had made a prior restraint argument in its Response to the Motion to Dismiss, this cause of action was not explicitly pleaded in the Second Amended Complaint.

Without causing Defendants to respond to the Court’s Minute Order, Cathy’s Tap sought leave of the Court to file a Third Amended Complaint. Defendants did not object. Cathy’s Tap filed its Third Amended Complaint on April 14, 1999. Defendants subsequently moved to dismiss Cathy’s Tap’s prior restraint count and renewed their request to dismiss the other counts in Cathy’s Tap’s Second Amended Complaint, which are included as Counts I, II, and IV in the Third Amended Complaint. On June 8, 1999, Cathy’s Tap filed its Response to Defendants’ Motion to Dismiss Count III of the Third Amended Complaint. This Order follows.

III. Standards for Motions to Dismiss

In resolving a motion to dismiss, this Court must consider all well pleaded facts as true and must draw all inferences in favor of the non-moving party. See Bontkowski v. First Nat’l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established as consistent with the allegations in the Complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiff to relief. See Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir.1995); Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir.1993).

IV. Bills of Attainder Claim — Count I

A law that legislatively determines guilt and inflicts punishment upon an identifiable group or individual without the protections of a judicial trial is a bill of attainder. See United States v. Brown, 381 U.S. 437, 445, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965); United States v. Lovett, 328 U.S. 303, 315-16, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Accordingly, to demonstrate that a legislative enactment is a bill of attainder, a party must demonstrate that the enactment (1) is specifically aimed at an affected person or group; (2) imposes a punishment on that person or group; and (3) imposes that punishment without a judicial trial. See Dehainaut v. Pena, 32 F.3d 1066 (7th Cir.1994).

As a threshold matter, a bill of attainder must “specifically designate persons or groups” for punishment. See Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). Cathy’s Tap’s position as to the specificity of Ordinances 98-02 and 98-03 is based on the following facts: (1) § 4 of Ordinance 98-02 provides that there are currently two liquor licenses in Mapleton; (2) § 4 further provides that at any time one of the licenses lapses for non-renewal or is revoked, the maximum number of licenses shall be reduced to one; (3) § 18 of Ordinance 98-02 provides that there shall be no sale of liquor in conjunction with an adult entertainment cabaret; and (4) Ordinance § 98-OS specifically bans live nude dancing. In short, Cathy’s Tap argues that because it was one of only two businesses licensed to sell alcohol and because it was offering cabaret entertainment, the Ordinances were specifically aimed at it. .

Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), affirming a dismissal of a bill of attainder claim, is the most instructive Supreme Court case on the issue of specificity. In that case, the Supreme Court determined that the Presidential Recordings and Materials Preservation Act, although referring to President Nixon by name, was not an attainder upon the president. To put it simply, the statute at issue preserved President Nixon’s records. In fact, Title I of the Act dealt exclusively with President Nixon’s papers. The Court explained that this specificity “is easily explained by the fact that at the time of the Act’s passage, only his materials demanded' immediate attention.” Id. at 472, 97 S.Ct. 2777. In other words, President Nixon constituted a “legitimate class of one.” Id.

In this ease, the Mapleton Ordinances do not make any explicit reference to Cathy’s Tap. Ordinance 98-02 does, however, at least indirectly refer to Cathy’s Tap by providing that at the time of its enactment there were currently two licenses for the sale of liquor in effect. Additionally, at the time of the enactment of 98-03, Cathy’s Tap was an adult entertainment cabaret as defined in the Ordinance. Therefore, it appears that Cathy’s Tap was one of only two establishments to which both Ordinances could have applied at the time of their enactment. Despite these facts, however, Cathy’s Tap still fails to meet the threshold requirement for demonstrating that the Ordinances are bills of attainder. In short, the Ordinances at issue are not even as specific as the act at issue in Nixon, which failed to meet the initial threshold requirement for being a bill of attainder.

The Ordinances are also distinguishable from the legislative enactments deemed by the Supreme Court as meeting the threshold requirement for being a bill of attainder. For example, in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), the Supreme Court held that a law prohibiting “Communists” from serving as a member of an executive board of a labor organization was impermissible under the bills of attainder clause because it failed to set forth a generally applicable rule that applied to all persons, Communist or not, who were likely to initiate political strikes, which was the alleged evil Congress sought to remedy. See id. at 450, 85 S.Ct. 1707. The Ordinances are also not like the law at issue in Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356 (1866). There, the Supreme Court struck down a provision of the Missouri post-Civil War Reconstruction Constitution that barred persons from various professions unless they stated under oath that they had not given aid or comfort to persons engaged in armed hostility and had never “been a member of, or connected with, any order, society, or organization, inimical to the government of the United States.” Id. at 279. The Court recognized that the oath was not a means to determine who was qualified for a certain profession but was designed “to reach the person, not the calling.” See id. at 320.

Unlike the laws at issue in Brown or Cummings, the Ordinances here are of general applicability. For example, § 4 of Ordinance 98-02 states that the maximum number of liquor licenses available in Ma-pleton is one, if and when one of the two licensees loses its license. This provision not only affects Cathy’s Tap and the other licensee, but it also affects other business interests in Mapleton that may, in the future, decide they want to obtain a license for the sale of alcohol. Additionally, § 18’s prohibition against the sale of alcohol in conjunction with adult entertainment not only applies to Cathy’s Tap, but also to other businesses that in the future decide to offer adult cabaret, sell adult books, or show adult motion pictures. Furthermore, the specific prohibited acts provision set forth in § 11(F) of Ordinance 98-03 not only applies to Cathy’s Tap, but also to businesses who in the future decide that they want to offer not only adult cabaret, but adult motion pictures and books. Accordingly, the Court holds that Cathy’s Tap’s Third Amended Complaint fails to allege facts that, if true, would enable it to meet the threshold requirement for proving that the Ordinances at issue are bills of attainder.

V. Freedom Speech Claim: Nude Dancing and Selling Liquor in Conjunction with Nude Dancing — Count II

In Count II, Cathy’s Tap seeks an order from this Court declaring that Ordinance 98-02 is facially unconstitutional under the Free Speech Clause, as it “prohibit[s] the sale of liquor associated with non-obscene nude dancing.” (Third Amended Complaint, Count II, ¶ 25(a)). It further seeks an order enjoining Mapleton from taking further steps to effect the final revocation of the liquor license under Ordinance 98-02 and from denying Cathy’s Tap’s adult use license under Ordinance 98-03. (Id., ¶ 25(b)). Lastly, it seeks compensatory damages for the revocation of the liquor license. (Id., ¶ 25(c)).

Cathy’s Tap concedes that there is not a constitutional right to consume alcohol. Nevertheless, it argues that “under the theory of unconstitutional conditions, the property right in a liquor license cannot be revoked by the exercise or pursuit of constitutionally protected conduct in the form of the communication of erotic messages through non-obscene live nude dancing.” (Response at 27). Cathy’s Tap further argues that “there must be some separate justification other than the suppression of protected conduct in order to justify revocation of a liquor license.” (Id.).

A. Ordinance 98-03

Because Cathy’s Tap’s various arguments hinge on the constitutionality of banning live nude dancing, the Court addresses this issue first. Section 11(F)(1) of Ordinance 98-03 provides, “No Adult Establishment Employee or any other person at any Adult Entertainment Establishment shall appear, be present, or perform while Nude.” Ord. 98-03, § 11(F)(1). “Nude or State of Nudity” is defined in the Ordinance as:

A state of dress or undress that exposes to view (1) less than completely and opaquely covered human genitals; pubic region; anus; or female breast below a point immediately above the top of the areolae, but not including any portion of the cleavage of the female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areolae is not exposed ...

Ord. 98-03, § 3(0). By prohibiting exposure of genitals, the anus, and the female areolae, Ordinance 98-03 essentially requires that cabaret entertainers or erotic dancers wear a G-string, or a thong, and pasties.

In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 581, 587-88, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), eight of the nine Justices recognized that totally nude, non-obscene dancing is expressive conduct that is entitled to at least minimal protection under the First Amendment. In Barnes, however, a splintered majority of the Supreme Court found that an Indiana statute banning public nudity was not unconstitutional as it applied to totally nude, erotic dancing. See id. at 572, 111 S.Ct. 2456 (plurality); id. at 580-81, 111 S.Ct. 2456 (Scalia, J., concurring); id. at 587, 111 S.Ct. 2456 (Souter, J., concurring). Mapleton argues that Barnes requires this Court to uphold its ban on totally nude dancing.

The plurality analyzed .the Indiana statute under the four-part test set forth by the Court in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Under the O’Brien-test, a regulation that burdens expressive conduct, as opposed to pure speech, is justified if: (1) it is within the constitutional power of the government, (2) it furthers an important governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment rights is no greater than necessary to further that interest. See id. at 377, 88 S.Ct. 1673. The Barnes plurality found that it was within the constitutional power of Indiana to provide for the health and welfare of its citizens. See Barnes, 501 U.S. at 569, 111 S.Ct. 2456 (plurality). Second, the plurality determined that the Indiana law furthered the State’s substantial interest in protecting order and morality. See id. Third, the plurality found that the statute was unrelated to expressive conduct since it was not the dancing that was prohibited, “but simply its being done in the nude.” See id. at 570-71, 111 S.Ct. 2456. Lastly, the requirement that dancers wear G-strings and pasties was “the bare minimum necessary to achieve the State’s purpose.” See id. at 572, 111 S.Ct. 2456. Consequently, the plurality held that the Indiana statute passed the O’Brien test.

Justice Scalia concurred in the judgment, but he saw the Indiana law as a regulation that was not targeted at expressive conduct and, therefore, was not subject to First Amendment scrutiny. See id. at 576, 111 S.Ct. 2456 (Scalia, J., concurring). Therefore, according to him, the O’Brien test was not even applicable. Instead, he applied the rational basis test to the statute and found it to be constitutional. See id. at 580, 111 S.Ct. 2456.

Justice Souter, the fifth vote in upholding the statute, agreed with the plurality’s conclusion that the O’Brien test was the applicable test; however, he parted with the plurality regarding their conclusion that public morality was sufficient cause to justify the limitation on totally nude dancing. See id. at 581, 111 S.Ct. 2456 (Souter, J., concurring). Instead, by drawing an analogy between the case in Barnes and cases in which the Supreme Court had approved zoning restrictions on establishments offering other forms of adult entertainment, he found that Indiana had a substantial interest in combating the secondary effects of “prostitution, increase[d] sexual assaults, and [the] attraction] of other criminal activity.” See id. at 582, 111 S.Ct. 2456. Therefore, because of the substantial interest in preventing or eradicating these secondary effects, Indiana could legitimately restrict nude dancing.

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those members who concurred in the judgment on the narrowest grounds.” ’ Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks and citations omitted). Since the Barnes decision, the Seventh Circuit has determined that “Justice Souter’s reasoning ... appears to be the narrowest reasoning supporting the judgment.” DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir.1999).

Important to this case is Justice Souter’s articulation of the secondary effects that are commonly associated with adult entertainment. The secondary effects to which he referred were not derived from the face of the statute at issue or from oral or written legislative history. See id. at 582, 111 S.Ct. 2456 (“It is ... true that this justification [of combating secondary effects] has not been articulated by Indiana’s Legislature or by its courts.”). Mapleton, accordingly, argues that Ordinance 98-03 is constitutional under the four-part O’Brien test for the same reasons that the Indiana statute at issue in Barms is constitutional: it furthers the important government interest of combating the harmful secondary effects associated with adult-oriented entertainment, see id. at 582-85, 111 S.Ct. 2456; the restriction on live nude dancing is unrelated to the expression of free expression since its interest in banning nude dancing results from a simple correlation of such dancing with harmful secondary effects, see id. at 585-86, 111 S.Ct. 2456; and the requirement of wearing pasties and a G-string restricts the protected speech no greater than essential to further Mapleton’s interest in combating harmful secondary effects, see id. at 587, 111 S.Ct. 2456.

- Mapleton has made a very compelling argument that based on Barnes, Ordinance 98-03 is not unconstitutional by prohibiting live nude dancing. However, this Court is not writing on a clean slate in this case. The Seventh Circuit’s opinion in DiMa makes it clear that the issue of whether it is constitutional for Mapleton to prohibit live nude dancing cannot be resolved at the motion to dismiss stage, despite the preamble of Ordinance 98-03 stating that the Board passed the Ordinance to combat the harmful secondary-effects associated with adult-oriented business and relied upon various studies, reports, articles, and judicial decisions, and the experience and legislative findings of other municipalities and counties in northern and central Illinois. See Ord. 98-03, Recitals. According to the DiMa court, “conclusory assertions [in an ordinance’s preamble] are insufficient by themselves to survive a First Amendment challenge because they are not ‘evidence’.... ” DiMa, 185 F.3d at 829. The DiMa court further stated:

Our First Amendment jurisprudence requires that the municipality identify the justifying secondary effects with some particularity, that [it] offer some record support for the existence of those effects and for the Ordinance’s amelioration thereof, and that the plaintiffs be afforded some opportunity to offer evidence in support of the allegations of their complaint.

Id. (citation, internal quotation marks, and modifications omitted).

Based on this admonition, the Court is unable to conclude at this stage of the litigation that Ordinance 98-03, to the extent it bans live nude dancing, is constitutional. This Court does question the wisdom of the DiMa court’s admonition in light of Justice Souter’s statement in Barnes that governmental bodies should not “be required affirmatively to undertake to litigate this issue [of harmful secondary effects] repeatedly in every case.” Barnes, 501 U.S. at 584-86, 111 S.Ct. 2456 (Souter, J.). The Court also questions what the DiMa court meant by stating that “the plaintiffs [must] be afforded some opportunity to offer evidence in support of the allegations of their complaint.” DiMa, 185 F.3d at 829. The DiMa court subsequently stated that the district court in that case properly rejected the plaintiffs expert evidence allegedly showing that there is no relationship between an adult-oriented business’ hours of operation and harmful secondary effects since such evidence was “irrelevant to the question of whether there is some evidence that does support the Board’s conclusions.” Id. at 831. Nonetheless, in the hierarchical scheme of things, it is not this Court’s place to second guess the Seventh Circuit’s reading of the Barnes decision.

Accordingly, although the municipality’s burden in this type of case “is not overwhelming,” see id. at 828, it is still a burden that must met. Because this matter is before the Court on a Rule 12(b)(6) Motion, the requisite record is not present and, hence, Mapleton has not met that burden. Consequently, this Court cannot conclude as a matter of law in the context of a Motion to Dismiss that Ordinance 98-03 is constitutional insofar as it bans live nude dancing.

With that said, however, the Court rejects, as a matter of law, certain arguments and/or claims made by Cathy’s Tap in its Third Amended Complaint and Response. Cathy’s Tap claims, at least implicitly, that because there is no evidence of harmful secondary effects in Mapleton, the prohibition of live nude dancing is unconstitutional. Even assuming for the sake of argument that Cathy’s Tap can prove by a preponderance of the evidence that harmful secondary effects have not occurred as a result of it offering live nude dancing (and/or live nude dancing in conjunction with the sale or consumption of alcohol), it cannot prevail on this point. There is no requirement that Mapleton await the occurrence of such secondary effects before it enacts legislation designed to prevent them. As explained by the Fourth Circuit, “To insist that governmental interests justifying [adult] use legislation could only be found in specific local experiences and conditions would be unrealistically to require deliberate subjection to those experiences and conditions before attempting to avoid them.” Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1169-70 n. 7 (4th Cir.1986). Furthermore, Cathy’s Tap’s allegations concerning the influence of religious persons and organizations allegedly exerted on the Village to pass these Ordinances is equally unavailing, as a court cannot “strike down an otherwise constitutional statute on the basis of an alleged illicit motive.” See Renton, 475 U.S. at 48, 106 S.Ct. 925 (citing O’Brien, 391 U.S. at 383, 88 S.Ct. 1673); see also DiMa, 185 F.3d at 828 (“The actual motives of those who enacted the ordinance are irrelevant to our First Amendment analysis.”)

B. Ordinance 98-02

Cathy’s Tap claims that Ordinance 98-02 is unconstitutional on its face under the Free Speech Clause “as prohibiting the sale of liquor associated with non-obscene nude dancing.” (Third Amended Complaint, Count II, ¶ 25(a)). Although it admits that there is not a constitutional right to consume alcohol, Cathy’s Tap argues that Ordinance 98-02 is unconstitutional since it places on a liquor licensee the alleged unconstitutional condition of foregoing a property right to offer constitutional expression in the form of non-ob-seene live nude dancing.

In its Motion to Dismiss, Mapleton does not attack the unconstitutional condition theory advanced by Cathy’s Tap. Instead, like it did in arguing that a prohibition on live nude dancing is constitutional, Mapleton argues that a prohibition on the sale of alcohol in conjunction with nude dancing is constitutionally permissible under the four-part O’Brien test: it furthers the governmental interest of combating the combustible mixture of nudity and alcohol; the restriction on selling alcohol in conjunction with live nude dancing is unrelated to the suppression of free expression since its interest in prohibiting the sale of alcohol in conjunction with nude dancing results from the simple correlation that the mixture of nudity and alcohol begets undesirable behavior; and the restriction of the sale of alcohol in conjunction with live nude dancing is no greater than necessary to further its interest.

For the reasons the Court has set forth above for denying Mapleton’s Motion to Dismiss as it pertains to Cathy’s Tap’s claim that a prohibition of live nude dancing is unconstitutional, the Court denies the Motion to Dismiss as it pertains to Cathy’s Tap’s claim that it is unconstitutional to ban live nude dancing in conjunction with the sale of alcohol. There must be record support of the existence of harmful secondary effects associated with the mixture of the sale and/or consumption of alcohol in conjunction with live nude dancing and for the Ordinance’s amelioration thereof. See DiMa, 185 F.3d at 828.

VI. Free Speech Claim: Prior Restraint — Count III

In Count III of the Third Amended Complaint, Cathy’s Tap alleges that Ordinances 98-02 and 98-03 constitute unlawful prior restraints in that they: (1) confer “unfettered discretion” upon the Village Liquor Commissioner and Adult Use Commissioner, respectively (Third Amended Complaint, Count III, ¶ 13); and (2) fail to provide for immediate judicial review. (Id., ¶ 21).

In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the Supreme Court struck down a Maryland motion picture censorship statute on the ground that the statute was an unconstitutional prior restraint. Pursuant to_ the censorship statute, a person seeking to exhibit a motion picture had to submit the picture to a board of examiners before the picture was exhibited. The board of examiners, in turn, approved only those films that were “moral and proper” and disapproved of those films that tended to “debase or corrupt morals or incite to crimes.” Id. at 52 n. 2, 85 S.Ct. 734. The Court held “that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under the procedural safeguards designed to obviate the dangers of a censorship system.” Id. at 58, 85 S.Ct. 734. The Freedman Court then set forth the necessary procedural safeguards: (1) any prior restraint in advance of a final judicial determination on the merits must be no longer than necessary to preserve the status quo pending judicial resolution; (2) a prompt judicial determination must be available; and (3) the would be censor bears the burden of going to court and the burden of proof in court. See id. at 58-59, 85 S.Ct. 734. Applying this standard to the statute at issue, the Supreme Court concluded that the statute was an unconstitutional prior restraint because: (a) the film exhibitor had to assume the burden of instituting judicial proceedings and of persuading the courts that the film was protected expression; (b) once the board of examiners acted against a film, exhibition thereof was prohibited pending judicial review; and (c) there was no assurance of prompt judicial review. See id. at 59-60, 85 S.Ct. 734.

The Freedman Court concluded its opinion by providing an example of a constitutionally acceptable prior restraint:

How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide. But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, we upheld a New York injunctive procedure to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing. The New York procedure operates without prior submission to a censor, but the chilling effect of a censorship order, even one which requires judicial action for its enforcement, suggests all the more reason for expeditious determination of the question whether a particular film is constitutionally protected.

Id. at 60, 85 S.Ct. 734.

Supreme Court cases subsequent to Freedman, however, clearly hold that all of the three Freedman protections are not necessarily required for a prior restraint to be constitutional. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Supreme Court struck down as an unconstitutional prior restraint a Dallas ordinance that regulated “sexually oriented businesses” through a scheme incorporating zoning, licensing, and inspections. Justice O’Con-nor, writing for the plurality, stated that Supreme Court cases addressing prior restraints have identified two “evils” that cannot be tolerated: (1) a prior restraint that places unbridled discretion in the hands of government officials; and (2) a prior restraint that fails to place limits on the time within which the decision maker must issue a license. See id. at 226, 110 S.Ct. 596 (plurality). The plurality held that the Dallas ordinance was an unconstitutional prior restraint because the ordinance “[did] not provide for an effective limitation on the time within which the licensor’s decision must be made.” Id. at 229, 110 S.Ct. 596 (plurality).

However, although the Dallas ordinance was held unconstitutional by the Supreme Court, FW/PBS makes it clear that the third Freedman protection is unnecessary when the ordinance or statute does not require an official to exercise discretion by passing judgment on the content of protected speech. The FW/PBS plurality explained:

The core policy underlying Freedman is that the license for a First Amendment-protected business must be issued within a reasonable period of time, because the undue delay results in the unconstitutional suppression of protected speech. Thus, the first two safeguards are essential: the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied.

Id. at 228, 110 S.Ct. 596. However, the plurality held that the third Freedman requirement — that the censor bear the burden of going to court if the speech is to be suppressed and of justifying the decision once in court — does not apply when the decision maker “does not exercise discretion by passing judgment on the content of any protected speech.” Id. at 229, 110 S.Ct. 596 (emphasis added). Also, “[b]ecause the license [was] the key to the applicant’s obtaining and maintaining a business, there [was] every incentive for the applicant to pursue a license through the court.” Id. at 229-80, 110 S.Ct. 596.

In Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc), a splintered Seventh Circuit court analyzed a Chicago ordinance governing the licensing of sidewalk newsstands. Under the ordinance at issue in Graff, the Chicago commissioner of transportation considered six exclusive criteria by which to grant or deny permission to build a newsstand, which did not vest a large amount of discretion in the commissioner or require him to evaluate the content of the materials to be sold on the newsstands. Because the discretion vested in the commissioner of transportation was minimal and the criteria did not require him to evaluate the content of newsstands, a majority of the en banc Graff court held that the third Freedman safeguard — that the censor bear the burden of going to court if the speech is to be suppressed and of justifying the decision once in court — need not be present for the ordinance to be a lawful prior restraint. See id. at 1323-25 (plurality); id. at 1330 (Flaum, J., concurring).

Additionally, because of the minimal discretion vested in the commissioner of transportation, a majority of the Graff court concluded that the ordinance was not unconstitutional despite lacking a self-contained provision for prompt judicial review. See id. at 1325 (plurality); id. at 1330 (Flaum, J., concurring). As explained by the plurality, the appropriate method in Illinois for reviewing the commissioner of transportation’s administrative decision is by the common law writ of certiorari. See id. at 1325 (plurality). The plurality further explained:

Unless excused, claimants have six months to file [a petition for writ of certiorari], wherein review is extremely broad in scope, and extends to all questions of fact and law contained in the record before the court, including de novo review of any constitutional issues .... The [state circuit] court determines from the record alone whether there is any evidence fairly tending to support the order reviewed, and the court cannot set aside the order unless it is contrary to the manifest weight of the evidence.... Findings and conclusions on questions of fact are prima facie true and correct. It is not the court’s function to resolve conflicting evidence.... If the circuit court, on the return of the writ, finds from the record that the inferior tribunal proceeded according to law, the writ is quashed; however, if the proceedings are not in compliance with the law, the judgment and proceedings shown by the return will be quashed.

In some other First Amendment cases the Supreme Court seemed to require an ordinance to provide for judicial review, even when the writ of common law certiorari is available. However, the Court has not- been presented with the argument that certiorari was in itself sufficient review, especially where the state makes the common law writ the current common practice, and in fact forbids any other kind of review. We conclude that such review is sufficient. Illinois has shown that a judicial forum is available to review administrative decisions.

Id.

Freedman, FW/PBS, and Graff stand for several propositions. If a statute or ordinance is directed at the content of protected speech, all three Freedman safeguards are necessary. However, if a statute or ordinance does not require an official to pass judgment on the content of protected speech, it need only provide for a prompt administrative decision on whether to grant a license and prompt judicial review of the administrative decision. Furthermore, Graff clearly holds, albeit in a splintered fashion, that a statute which is not directed at content need not contain a self-contained provision providing for prompt judicial review, and the Illinois procedure in the form of a common law writ of certiorari is a sufficient mechanism for judicial review of an administrative decision.

With these principles in mind, the Court turns to Ordinances 98-02 and 98-03. Ma-pleton argues that the alleged prior restraints in this case should be evaluated under the Seventh Circuit’s opinion in Graff, ie., the Ordinances are lawful prior restraints because: (1) liquor and adult use licenses are either granted or denied promptly; and (2) Illinois law provides for certiorari review of an administrative decision to deny a liquor and/or adult use license. See 785 ILCS 5/3-101 et seq.

Under Ordinance 98-03, the Adult Use Commissioner is required to grant or deny the issuance of a license to an applicant within 30 days after submission of a properly completed application. See id., § 7(G). If the Adult Use Commissioner determines that an applicant has not met the requirements for the issuance of a license, he is required to provide the applicant with written notification and an explanation of his decision. See id., § 7(B). If a licensee violates a provision of the Ordinance, its license may be suspended for no more than 30 days or revoked. Prior to a suspension or revocation of a license, the Adult Use Commissioner is required to provide notice to the licensee. See id., § 17(B). The written notice notifies the licensee: (1) that the Adult Use Commissioner has determined that the license may be subject to revocation or suspension; (2) of the specific grounds for the Adult Use Commissioner’s determination; and (3) of the date for a hearing. See id., § 17(B)(1). Within five days of service of the notice, a hearing must be conducted by the Adult Use Commissioner, or, at his discretion, by the Adult Use Commission. See id., § 17(B)(2). At the hearing, the licensee is entitled to present evidence and witnesses to refute the grounds cited by the Adult Use Commissioner in the notice. Within three days of the hearing, the Adult Use Commissioner is required to render a decision. See id. Ordinance 98-03 explicitly provides that actions taken by Mapleton’s Adult Use Commissioner in either denying, revoking, or suspending an adult use license are final and subject to judicial review. See id., §§ 7(G), 17(B)(2).

Ordinance 98-02 does not explicitly provide for a hearing when the determination is made to grant or deny, suspend, or revoke a license. The' Ordinance merely provides that an application for the issuance or renewal of a license must be made at least 30 days prior to the next Village Board meeting. Applications are then considered by the Board at the next meeting. See Ord. 98-02, § 10. With regard to revocation or suspension of a liquor license, the Ordinance merely provides that a license may be revoked or suspended for a violation of, inter alia, the terms of the Ordinance. See id., § 19(B). Of course, Mapleton was not writing on a clean slate when it enacted Ordinance 98-02. The Illinois Liquor Control Act explicitly provides that the revocation or suspension of a local liquor license cannot occur until “after a public hearing by the local liquor control commissioner with a 3 day written notice to the licensee affording the licensee an opportunity to appear and defend.” 225 ILCS 5/7-5.

A decision by Mapleton’s Liquor Commissioner to issue or deny, revoke, or suspend a liquor license may be appealed to the State of Illinois Liquor Commissioner as provided by the Liquor Control Act. See Ord. 98-02, § 19(C). The Liquor Control Act further provides that “any order of a local liquor control commissioner levying a fine or refusing to levy a fine on a licensee, granting or refusing to grant a license, revoking or suspending or refusing to revoke or suspend a license ... may, within 20 days after notice of such order or action, be appealed ... to the State Commission.” 235 ILCS 5/7-9. The Liquor Control Act also provides that the State Commission’s administrative decision is subject to judicial review pursuant to the common law writ of certiorari as outlined in Illinois’ Administrative Review Law Act, 735 ILCS 5/3-101 et seq.

Assuming under the Mapleton Ordinances that officials do not pass judgment on the content of protected speech, it is possible that the Seventh Circuit’s opinion in Graff would require Count III to be dismissed. However, the Court is not convinced that this is the situation in this case. Mapleton argues that because Justice Souter and the three Justice plurality in Barnes analyzed the statute at issue in that case under the four-part O’Brien test, thereby implying that the statute was something other than content-based, the Ordinances at issue in this case are also content-neutral. However, the DiMa court cautioned courts and litigants not to “fall into the shorthand of simply referring to regulations like the one here as ‘content-neutral’ .... ” DiMa, 185 F.3d at 827. As explained by the DiMa court, the Supreme Court in Renton held that the regulation of sexually explicit material “would be treated like content-neutral time, place, and manner regulations, not that it was content-neutral.” Id. (emphasis added). The Court further notes that Justice Souter and the three Justice plurality did not even treat the statute at issue as a content-neutral statute, but as one placing restrictions on expressive conduct, thereby requiring intermediate scrutiny analysis. See Barnes, 501 U.S. at 566-67, 111 S.Ct. 2456 (plurality); id. at 582, 111 S.Ct. 2456 (Souter, J.).

Perhaps an argument can be made that ordinances directed at sexually-oriented businesses should also be viewed with less scrutiny for purposes of determining whether the ordinances constitute prior restraints. However, this Court’s reading of the plurality opinion in FW/PBS appears to refute such a blanket rule. The FW/ PBS plurality stated that all three of the Freedman requirements were not required in that case because that ordinance at issue did not present the “grave dangers of a censorship system.” FW/PBS, 493 U.S. at 228, 110 S.Ct. 596 (plurality). The reason that the ordinance did not present such dangers is because city officials did “not exercise discretion by passing judgment on the content of protected speech.” Id. at 229, 110 S.Ct. 596. Hence, the use of a lesser prior restraint threshold by the FW/PBS plurality was not due to the fact that the ordinance was directed at sexually-oriented businesses, but due to the fact that the city officials did not pass judgment on the content of protected speech.

Mapleton has failed to convince the Court that something less than all three Freedman requirements are necessary. Both Ordinances arguably require Mapleton officials to judge the content of the erotic dancing offered by adult cabaret establishments in determining whether or not to revoke a license. In the case of Ordinance 98-02, a liquor license can be revoked or suspended by the Liquor Commissioner if a dancer engages in “specified sexual activities”: (a) human genitals in a state of sexual stimulation or arousal; (b) acts or representations of acts of human masturbation, sexual intercourse or sodomy, bestiality, oral copulation, or flagellation; (c) fondling or erotic touching of human genitals, pubic region, buttock, or female breasts; and (d) excretory functions as part of or in connection with any of the aforementioned activities. See Ord. 98-02, §§ 18, 19(B). Similarly, an adult use license can be revoked by the Adult Use Commissioner if a dancer engages in “specified sexual activities”: (a) fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts; (b) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; (c) masturbation, actual or simulated; (d) human genitals in a state of sexual stimulation, arousal, or tumescence; and (e) excretory functions as part of or in connection with the aforementioned activities. See Ord. 98-02, §§ 3(T), 11(F)(2), 17(A)(1). Additionally, for an adult use license to issue to an adult cabaret establishment, the applicant must, inter alia, confirm in writing under oath that its operation shall comply with the terms of Ordinance 98-03, i.e., shall not offer adult cabaret that features “specified sexual activities.” Ord. 98-03, § 8(A)(8).

Assuming for the sake of argument that the prohibited “specified sexual activities” are' not protected speech under the First Amendment, the line between protected erotic dancing and at least some of the “specified sexual activities” is not easily discernable by censor. Cf. Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (constitutionally protected speech is separated from unprotected obscenity “only by a dim and uncertain line”); Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497, 505 (7th Cir.1980). For example, both Ordinances prohibit simulated sexual intercourse. Arguably, reasonable people could disagree whether an erotic dancer moving her hips in a certain fashion or doing a “pole dance,” whether by herself or with another dancer, is simulating sexual intercourse or merely dancing in an erotic and constitutionally protected manner. Both Ordinances also prohibit erotic touching of female breasts. Arguably, reasonable people could disagree whether a female dancer lightly running her fingers across her cleavage while performing a dance constitutes such activity or is a constitutionally protected, erotic expression. If a censor inspecting an adult cabaret establishment were to conclude that a dancer moving her hips or doing a pole dance in a certain fashion were performing a specified sexual activity, then the establishment’s adult use and/or liquor license is subject to revocation by the appropriate Village authorities. In other words, a censor could arguably chill protected speech for a period of time prior to any judicial determination. See Freedman, 380 U.S. at 57-58, 85 S.Ct. 734 (“Because the censor’s business is to censor, there inheres thé danger that he may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in freedom of expression.”).

Furthermore, assuming that Ordinance 98-03’s prohibition on totally nude dancing is constitutional, there remains the issue of a censor making a determination of whether a dancer’s genitals, pubic region, anus, and areolas are “less than opaquely covered.” Ord. 98-03, § 11(R). While arguably this is an objective inquiry on the part of a censor, there is also an argument that this inquiry presents the opportunity for a censor to manipulate the standard in § 11(R) to suppress protected speech of which he disapproves.

The Court recognizes the fact that courts are not to create remote or unlikely scenarios for the censorship of speech. See Graff, 9 F.3d at 1317 (plurality). However, unlike the Ordinance at issue in Graff, which was directed at all public newsstands, the Ordinances in this case are directed at a particular type of entertainment establishment, thereby, arguably, presenting a more immediate threat of censorship by manipulation of the standards set forth in the Ordinances.

In light of the fact that Mapleton has failed to convince the Court that the Ordinances do not confer discretion on city officials to pass judgment on the content of protected speech, it has also failed to convince the Court that the requisite procedural safeguards are present in the Ordinances for them to pass constitutional muster. It is questionable whether Illinois’ certiorari process constitutes sufficiently prompt judicial review for if an ordinance confers such discretion. The Illinois Administrative Review Act provides that review of a final agency decision shall occur “with all convenient speed.” 735 ILCS 5/3-110. In contrast, the New York statute identified by the Freedman Court as an example of a constitutional prior restraint provided that judicial review must occur within one day after joinder of issue and a judicial determination must be made within two days after the hearing. See Freedman, 380 U.S. at 60, 85 S.Ct. 734; see also Graff, 9 F.3d at 1330 (Flaum, J., concurring) (because the Chicago Ordinance did not involve “separating protected from unprotected speech,” the certiorari process was a sufficient avenue for judicial review). Additionally, neither Ordinance requires Mapleton to bear the burden of proceeding to court prior to revoking a license and proving -that the speech at issue — specified sexual activities — occurred and is unprotected. See Freedman, 380 U.S. at 58-59, 85 S.Ct. 734; see also FW/PBS, 493 U.S. at 231, 110 S.Ct. 596 (plurality) (because the Dallas ordinance did not purport to pass judgment on the content of any protected speech, the Freedman requirement that the' censor bear the burden of going to court and the burden of proof in court was unnecessary).

Mapleton also argues that Cathy’s Tap’s prior , restraint argument is completely inapplicable to Ordinance 98-02 “because the issuance of a liquor license in no way implicates any First Amendment rights.” (Motion to Dismiss Count III at 3 n. 2). The Court disagrees. A prior restraint occurs where communication is suppressed, either directly or by inducing excessive caution in the communicator, without a prior judicial determination that the speech is unprotected by the First Amendment. See Alexander v. United States, 509 U.S. 544, 551-52, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). Because reasonable people could disagree whether certain types of dancing, e.g., pole dancing or moving one’s hips in a certain manner, constitute simulated sex acts which are prohibited by Ordinance 98-02, Cathy’s Tap or another liquor licensee might, arguably, curtail the permissible scope of its entertainment to ensure that its liquor license is not revoked under Ordinance 98-02 by a censor.

Accordingly, the Court denies Maple-ton’s request to dismiss Count III of the Third Amended Complaint. The Court wishes to make clear, however, that its denial of Mapleton’s Motion to Dismiss Count III of the Third Amended Complaint should not be read as conclusively establishing, as a matter of law, that the Ordinances at issue must be analyzed under the stricter Freedman requirements, as opposed to the less stringent requirements of Graff and FW/PBS. Furthermore, the Court expresses no opinion whether the Ordinances at issue are lawful prior restraints even if analyzed under the less stringent requirements set forth in Graff and FW/PBS.

VII. Establishment Clause Claim — Count IV

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const., Amend. I. Since 1971, the test used to analyze challenges under the Establishment Clause has come from the Supreme Court’s decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Therein, the Court articulated a three-part test that courts are to apply in determining whether a legislative enactment survives constitutional scrutiny: (1) whether the enactment has a secular purpose; (2) whether it advances or inhibits religion in its principal or primary effect; and (3) whether it fosters an excessive entanglement with religion. See id. at 612-13, 91 S.Ct. 2105. Although the Lemon test has been criticized by members of the Supreme Court and various lower courts, it “remains the operative standard.” See Cohen v. City of Des Plaines, 8 F.3d 484, 489 (7th Cir.1993) (citing cases).

The primary issue in this case regarding the Establishment Clause claim is whether the Ordinances have a secular purpose. Cathy’s Tap explicitly alleges in its Third Amended Complaint that the Ordinances are a result of “the Village succumbing to the importuning of religious groups whose religious creed opposes either or both the provision of alcoholic beverages or the communication of non-obscene erotic messages through live non-obscene nude dancing.” (Third Amended Complaint, ¶ 17).

The Court has not found any case in which the successful lobbying efforts of religious organizations or individuals invalidates a legislative enactment under the Establishment Clause. As explained by the Supreme Court:

Adherents of particular faiths and individual churches frequently take strong positions on public issues including vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right. No perfect or absolute separation is really possible....

Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 670, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). It would be a severe infringement on the free speech rights of those persons or groups with religious views to forbid them from lobbying their local government or, if allowed to lobby, to require them to leave their religious beliefs and convictions at the steps of city hall.

Furthermore, it is a well-settled maxim that courts are “reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State’s program may be discerned from the face of the statute.” Mueller v. Allen, 463 U.S. 388, 394-95, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983). In this case, a “plausible secular purpose” may be discerned from the face of each Ordinance. With regard to Ordinance 98-03, a plausible secular purpose of combating the harmful secondary effects associated with adult-use establishments can be discerned from the face of the Ordinance. With regard to Ordinance 98-03, a plausible secular purpose of combating the combustible mixture of alcohol and nudity can be discerned from the face of the Ordinance.

The Court further concludes that the Ordinances neither advance nor inhibit religion in their principle or primary effect. The respective texts of the ordinances at issue here do not even begin to touch upon the subject of religion. Neither ordinance says anything positive or negative about religion. Religion is not cited as a justification for the Ordinances, nor do the Ordinances say anything about the religious beliefs of any business, employee, or patron. They do not require any person to believe or not believe in a religion, nor do they exalt any belief that can be fairly characterized as religious in nature. While, presumably, the beliefs of some religious groups and individuals are furthered by the enactment of these Ordinances, these benefits are neither directed toward nor limited to religious individuals. In summary, the Ordinances cannot be said to advance the religious tenets of those who live in and around the Village of Mapleton any more than the Civil Rights Act of 1964 can be said to have advanced the religious tenets of the many African-American clergymen who successively lobbied Congress for the codification of equal rights.

Lastly, no plausible argument can be made that the Ordinances foster an excessive entanglement with religion. Accordingly, the Court will not address this aspect of the Lemon test.

VIII. Individual Capacity Claims Against Ken Odewalt — Qualified, Legislative, and Judicial Immunity

Defendant Ken Odewalt (“Odewalt”), who is Mapleton’s Mayor or Village Board President, the Adult Use Commissioner, and the Liquor Commissioner, is named as a party Defendant in his individual capacity. Odewalt seeks dismissal from the case in his individual capacity under various theories of immunity.

A. Qualified Immunity

When Odewalt originally sought qualified immunity, the Prior Restraint Count, Count III, had yet to be pleaded by Cathy’s Tap. When Defendants moved to dismiss Count III after Cathy’s Tap filed its Third Amended Complaint, Odewalt did not raise a qualified immunity defense to that Count. Because qualified immunity analysis is both fact and case law specific, the Court will not address in this Order whether Odewalt is entitled to qualified immunity on Count III. Furthermore, because Counts I and IV are dismissed with prejudice, the Court will address the qualified immunity argument only with respect to Count II.

Government officials enjoy qualified immunity from liability under 42 U.S.C. § 1983 unless their conduct violated “clearly established constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Id.

In light of the Supreme Court’s opinion in Barnes, supra, the Court holds that the law regarding the constitutionality of prohibiting live nude dancing was not clearly established when Mapleton enacted Ordinance 98-03 and subsequently denied Cathy’s Tap an adult use license. In fact, a reasonable government official could conclude based on a reading of the Supreme Court’s opinion in Barnes that it was perfectly constitutional to enadt and enforce an ordinance prohibiting live nude dancing. The Court also notes that Cathy’s Tap, which bears to burden of showing that the law was clearly established, has not even addressed Odewalt’s qualified immunity argument. Accordingly, Odewalt is entitled to qualified immunity against Cathy’s Tap’s claim that the enactment and subsequent enforcement of Ordinance 98-03 unconstitutionally prohibit live nude dancing.

The Court further concludes that the law regarding the constitutionality of prohibiting live nude dancing in conjunction with the sale and/or consumption of alcohol was not clearly established' when Mapleton enacted Ordinance 98-03 and subsequently revoked Cathy’s Tap’s liquor license for violating the terms of the Ordinance. In California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Supreme Court approved, as a valid exercise of general police power, an ordinance prohibiting certain sexually oriented performances where liquor was sold. Additionally, the “added presumption in favor of State regulation” conferred by the Twenty-First Amendment further supported the Court’s conclusion. See id. at 118, 93 S.Ct. 390. Since LaRue, other laws preventing adult-oriented establishments from providing liquor have been upheld by courts