EAST ST. LOUIS – Cahokia Heights agreed not to enforce an ordinance restricting topless bars while bar owners challenge it at U.S. district court.
Owners of Pony T’s and Club Onyx reported the agreement to District Judge Stephen McGlynn on Jan. 3.
McGlynn had set a hearing for that date, on a motion for a temporary restraining order.
The ordinance would close the bars at 2 a.m., three hours earlier than at present. It would also assess an annual fee of $10,000.
All eight Cahokia Heights council members adopted it in November, “to protect the public health, safety and welfare of the city and its residents.”
It authorized “immediate revocation without remedy” if Cahokia Heights police or any other agency discovered prostitution.
It authorized the same consequence for any grounds that would warrant denial or issuance of a permit in the first place.
It authorized inspection by the police chief or health inspector at any time, at least twice a year.
It limited the number of permits to three and prohibited transfer by any means.
Pony T’s and Club Onyx retained Michael Murray, Steven Shafron, and William Livingston of Cleveland to challenge the ordinance.
For local counsel they retained John Schneider of Cape Girardeau, Mo., and he filed a complaint on Dec. 29.
The clubs claim the ordinance unconstitutionally abridged freedom of expression and impermissibly imposed prior restraint on expression.
They also claim the ordinance vested arbitrary discretion in a city official it didn’t identify.
It doesn’t set out criteria or a time frame for application or issuance of a permit or provide for review of denial, judicial or otherwise.
It also authorizes warrantless searches without any requirement of probable cause.
The clubs also claim the fee exceeds the administrative costs incident to the permits.
The council adopted the ordinance without relevant empirical information to support it, according to the clubs. On Dec. 20, it was presented to representatives of the clubs, who were advised that the city would begin enforcing it on Jan. 3.
In a motion for a temporary restraining order Schneider wrote, “The Supreme Court has long held that nude dancing enjoys protection under the First Amendment.”
He wrote that a licensing scheme placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint.
He wrote that censorship might result from exercise of such raw power by officials who might use it to silence messages with which they disagree.
Garret Hamilton of Meridianville, Ala. manages the corporation that owns Pony T’s, and Kathy Wolford of McClure, Ill. acts as registered agent.
Charles Westlund of Brentwood, Tenn. manages the corporation that owns Club Onyx, and Kathy Sullivan of McClure acts as registered agent.
Cahokia Heights originated from a merger of Cahokia, Centreville, and Alorton that voters approved in 2020, effective last May.