{ "id": 1096577, "name": "WARREN J. WRIGHT, d/b/a Lake Street Spa and Spa 64, et al., Plaintiffs and Counterdefendants-Appellants, v. THE COUNTY OF DU PAGE, Defendant and Counterplaintiff-Appellee", "name_abbreviation": "Wright v. County of Du Page", "decision_date": "2000-09-13", "docket_number": "No. 2-99-0743", "first_page": "28", "last_page": "43", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 28" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "98 Wis. 2d 188", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8673496 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "203" }, { "page": "805" }, { "page": "203" }, { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/98/0188-01" ] }, { "cite": "452 U.S. 61", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1313784 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/452/0061-01" ] }, { "cite": "501 U.S. 560", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1107753 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/us/501/0560-01" ] }, { "cite": "491 U.S. 397", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6214891 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "404" }, { "page": "353" }, { "page": "2539" } ], "opinion_index": 0, "case_paths": [ "/us/491/0397-01" ] }, { "cite": "418 U.S. 405", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173167 ], "weight": 9, "year": 1974, "pin_cites": [ { "page": "409" }, { "page": "846" }, { "page": "2730" }, { "page": "410-11" }, { "page": "847" }, { "page": "2730" }, { "page": "409-10" }, { "page": "846" }, { "page": "2730" } ], "opinion_index": 0, "case_paths": [ "/us/418/0405-01" ] }, { "cite": "391 U.S. 367", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767540 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "376" }, { "page": "679" }, { "page": "1678" } ], "opinion_index": 0, "case_paths": [ "/us/391/0367-01" ] }, { "cite": "490 U.S. 19", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605928 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "25" }, { "page": "25-26" }, { "page": "1595" } ], "opinion_index": 0, "case_paths": [ "/us/490/0019-01" ] }, { "cite": "198 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2476574 ], "year": 1990, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0061-01" ] }, { "cite": "162 Ill. App. 3d 351", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508580 ], "year": 1987, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0351-01" ] }, { "cite": "178 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2432004 ], "year": 1989, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0118-01" ] }, { "cite": "530 U.S. 640", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9414133 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "648" }, { "page": "563" }, { "page": "2451" } ], "opinion_index": 0, "case_paths": [ "/us/530/0640-01" ] }, { "cite": "285 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295547 ], "year": 1996, "pin_cites": [ { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0745-01" ] }, { "cite": "313 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186570 ], "year": 2000, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0070-01" ] }, { "cite": "295 Ill. App. 3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45786 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0272-01" ] } ], "analysis": { "cardinality": 1290, "char_count": 39149, "ocr_confidence": 0.774, "pagerank": { "raw": 1.1604674762545145e-07, "percentile": 0.5839655130472857 }, "sha256": "a908a963e2b7d3a21682ccd89f6f6c60ad0650872fe8f6f20f0e738d40b99260", "simhash": "1:2550f61eef4a97f3", "word_count": 6281 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WARREN J. WRIGHT, d/b/a Lake Street Spa and Spa 64, et al., Plaintiffs and Counterdefendants-Appellants, v. THE COUNTY OF DU PAGE, Defendant and Counterplaintiff-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE BOWMAN\ndelivered the opinion of the court:\nPlaintiffs-counterdefendants, Warren Wright, d/b/a Lake Street Spa and Spa 64; 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 Page County permanently restraining and enjoining the Spas from using the property at their respective locations as adult businesses. Defendant-counterplaintiff, the County of Du Page (County), had filed a second amended counterclaim seeking such relief.\nOn appeal the Spas contend that (1) they lawfully located under the zoning provisions in effect at the time they opened and therefore are entitled to continue to operate as prior nonconforming uses; (2) the trial court erred in determining that the activity conducted at the Spas was not protected under the first amendment free speech clause (U.S. Const., amend. I); and (3) the trial court erred in upholding the constitutionality of the County\u2019s adult business use zoning provisions and in enjoining the operation of any adult business use at the Spas\u2019 respective locations, as the provisions were overly restrictive and a prior restraint on freedom of speech.\nThe Spas commenced their operations in 1996 offering services that included touching, rubbing, and application of pressure by female employees to the bodies of paying customers. The Spas charged various prices for their massages depending 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 during 1996 and continuing to the present time, the Du Page County Zoning Ordinance (Du Page County Zoning Ordinance (1997)) provided for adult uses in light industrial districts (I \u2014 1) and in general industrial districts (I\u2014 2).\nLake Street Spa is located at 24W464 Lake Street in unincorporated Du Page County in a local business district (B \u2014 1). The north side of the spa\u2019s property is adjacent to property that is zoned residential. Spa 64 is located at 21W500 North Avenue in unincorporated Du Page County in a general business district (B \u2014 2). The spa is about 300 feet from a single-family residence and 200 feet from a multiple-family residence. Neither the surrounding zoning classification nor the residential characters where the Spas are located have changed since the commencement of their operations.\nInitially, litigation began when the County filed an administrative complaint against the Spas for violations of the Du Page County massage establishment license ordinance. The Spas then filed a complaint in the circuit court seeking an injunction to preclude an administrative hearing. The County withdrew its administrative complaint and filed a counterclaim, bringing, essentially, the same cause of action as the cause in the administrative complaint. The County sought injunctive relief to enjoin the Spas from conducting massage establishments at their respective locations until each spa obtained a massage establishment license. In opposition to the County\u2019s request, the Spas argued that, because the massages given at their establishments were purely recreational and not therapeutic, they were not subject to regulation by the massage establishment license ordinance and, therefore, could not be operating in violation of that ordinance. The parties had previously entered into a stipulation stating that the Spas did not perform therapeutic massages at their establishments but, rather, \u201cerotic entertainment performances.\u201d The trial court denied the County\u2019s request for injunctive relief.\nSubsequently, the County filed a second amended counterclaim, seeking to have the Spas permanently enjoined from conducting their activities. The County contended that the Spas\u2019 use of their property constituted an adult use as defined in the Du Page County Zoning Ordinance (ordinance) and was permitted only in I \u2014 2 districts and conditionally permitted in I \u2014 1 districts. Additionally, the County contended that each use was illegal because it was being conducted within 500 feet of residential districts.\nThe Spas filed a second amended complaint, seeking a declaration that they could continue in business where they were located. The Spas alleged that, at the time they commenced their operations, they were specifically permitted to perform such activities under the ordinance and therefore enjoyed the protection afforded to a prior nonconforming use. The Spas reasoned that they were a permitted use because they were massage parlors. The Spas maintained that their business use qualified them as \u201cmasseurs\u201d and that the ordinance expressly and specifically permitted masseurs to locate as permitted uses in B \u2014 1 and B \u2014 2 zoning districts. The Spas asserted that, if the ordinance was found to bar their uses where located, the Spas were otherwise protected by the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV) and section 4 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 4). Specifically, the Spas maintained that their activities constituted presumptively protected expression and that the ordinance was unconstitutional as overly restrictive or a prior restraint on free speech.\nThe County answered that, when the Spas opened for business in 1996, they were not permitted uses within the B \u2014 1 and B \u2014 2 districts where they located. As a result, the Spas could not enjoy the protection afforded a prior nonconforming use. The County also responded that the business of the Spas did not involve protected conduct pursuant to first amendment guarantees of free speech and, even if so protected, the ordinance was not constitutionally invalid as overly restrictive or a prior restraint on free speech.\nThe cause proceeded to trial. At trial Officer Dennis Schar of the Glendale Heights police department and Detective Mark DePino of the Du Page County sheriffs office testified regarding their undercover investigative visits to the Spas. The officers testified to conduct that was corporeal in nature and consisted of the methodical touching of each officer by a female employee while she was wearing nothing but a G-string. The officers were nude. Schar related that the woman who performed the massage on him told him that he could touch himself during the massage. Also, when she massaged his legs, back, and chest, she pressed her breasts against his body. DePino stated that his massage worker told him that he could touch her body, but not her \u201cprivate parts,\u201d while she was giving him the massage. Both Schar and DePino indicated that there was no performance or dance during the massages and any conversation, other than the female employees explaining to the officers what they were allowed to do during the massage, amounted to small talk.\nApril McLaughlin, the manager of Spa 64, described the massages as visual and auditory experiences that could include dancing and role playing. According to McLaughlin, visual stimulation was provided by the completely mirrored and dimly lit massage rooms. Auditory stimulation was provided by sensual music and conversation. It was McLaughlin\u2019s testimony that the Spa employees often incorporated adult conversation during the sessions. McLaughlin acknowledged that the sign in the lobby of Spa 64 setting forth the prices for three different massages did not refer to the sessions as massage sessions but as \u201cerotic encounters.\u201d\nWilliam Heniff, the zoning administration supervisor for the County, testified that the term \u201cmasseur\u201d is not synonymous with the term \u201cmassage parlor,\u201d as the former is an occupation and the latter is a use on the premises. Heniff stated that, under the ordinance, a massage parlor offering nude or topless massages would be classified as an adult business use. Heniff based his classification both on the definition of \u201cadult business use\u201d in the ordinance and on the definition of \u201cspecified anatomical areas.\u201d Under the ordinance, an adult business use refers to any use of a substantial portion of property for an activity characterized by emphasis on matters relating to specified anatomical areas. \u201cSpecified anatomical areas\u201d is defined in part as \u201c[l]ess than completely or opaquely covered human genitals, pubic region, buttock, anus or female breasts below a point immediately above the top of the areola.\u201d Du Page County Zoning Ordinance \u00a7 37\u2014 3.2 (1997). Heniff related that an adult use of the sort being conducted at the Spas can be allowed as a conditional use in I \u2014 1 districts and a permitted use, as a matter of right, in I \u2014 2 districts. Heniff testified that, from their inceptions, the Spas constituted illegal uses at their locations in B \u2014 1 and B \u2014 2 districts. Heniff stated that neither spa ever applied for a conditional use.\nAccording to. Heniff, the 1986 amendment to the County\u2019s zoning ordinance allowed adult businesses to locate as permitted uses in I \u2014 2 districts and as conditional uses in I \u2014 1 districts. At that time, Heniff stated, the preamble to those regulations stated that the industrial districts represented \u201c4.7% of the total unincorporated area of Du Page County.\u201d Heniff pointed out that in 1986 there were substantially more parcels available for adult business uses than in 1996. But, when the Spas opened, there were an adequate number of sites available for an adult business use both in I \u2014 2 and I \u2014 1 districts. Heniff related that in 1996 the restrictions as to the location of adult businesses were identical to the restrictions set forth in the 1986 amendment to the ordinance. Heniff specifically described and identified on a map depicting industrial-zoned districts in unincorporated Du Page County four sites that he had personally visited where adult businesses were permitted.\nHeniff estimated that between 1986 and 1998 the industrial-zoned property in unincorporated Du Page County had decreased by 60% due to the annexation of that land by surrounding municipalities. Heniff explained that the County has no legal standing in municipal annexation proceedings and that, although land available for adult business uses was diminishing, the diminution was due to municipal annexation and not to the County\u2019s zoning ordinances.\nNeil Renzi, a professional appraiser, testified that he was hired by the Spas to identify and inspect all I \u2014 1 and I \u2014 2 districts located in unincorporated Du Page County that contained land available for adult business uses. Renzi was to assess the sites to determine if they were commercially suitable, i.e., assess the development costs, access-ability, and compatibility of the sites with the proposed \u201cgeneric commercial enterprise\u201d that might be located at a specific site. Renzi defined generic commercial enterprises as bakeries, card shops, banks, grocery stores, and restaurants. According to him, adult nude massage parlors also constituted generic commercial enterprises. Renzi opined that generic commercial enterprises are incompatible with industrial lands in Du Page County. In his opinion no parcel of industrial land in unincorporated Du Page County, including any of the sites presented by the County, would be suitable for an adult business use or for relocating a generic commercial enterprise.\nJoseph Abel, director of planning for the County from 1970-87 and developer of the first comprehensive plan for the County, testified that the County\u2019s planning authority is county-wide, i.e., its land use plan applies to all of the incorporated as well as unincorporated land within the county. The County\u2019s zoning authority is restricted to the unincorporated areas. Presently, only 20% of the unincorporated areas in the county is left for development. Abel opined that by 2010 there will be no unincorporated land remaining for any sort of development, as municipalities will have annexed all of the remaining undeveloped or unincorporated areas. Abel acknowledged that the County has no standing in annexation proceedings and is notified of annexations after they have been accomplished.\nAbel testified that adult uses were not discussed as part of the County\u2019s comprehensive plan and that they were not part of the planning program. The County deals with the distribution of adult business uses through its zoning authority and zoning process.\nBased on his knowledge of certain areas and a spot survey of other areas, Abel opined that there are more than an adequate number of sites in unincorporated Du Page County in which adult businesses can operate. On a map depicting industrial-zoned properties in unincorporated areas of the county, Abel identified and described the sites he had located in Downers Grove, Westmont, West Chicago, Lisle, and Addison. Three of the parcels were located in I \u2014 1 or I \u2014 2 districts within one-quarter to one-half mile from where Spa 64 opened in 1996. According to Abel, each of these sites could have served as a place for an adult business use. In determining whether these sites were suitable for adult business uses, Abel decided if the sites met zoning requirements, i.e., whether each site was located in a proper district and whether it satisfied all district distancing or buffering requirements imposed on adult uses. Abel stated that, if he had done an inventory of every industrial site in the entire county, he would have located more sites for adult business uses than those he named as a result of his spot survey.\nDuring trial the Spas moved to admit the stipulation entered into by the parties when the only issue was whether the Spas had violated the County\u2019s massage establishment license ordinance. The trial court denied the admission of the stipulation, ruling that the stipulation had been reached pursuant to a motion challenging the therapeutic massage ordinance (massage establishment license ordinance), a motion upon which the Spas had prevailed, and that the stipulation had no bearing on the present proceedings. The court found that it was \u201cbeyond the stretch of any logic that the parties intended to bind themselves by this stipulation\u201d on the trial of the County\u2019s second amended counterclaim, which was not filed until after the stipulation had been reached.\nFollowing trial, the court found that the evidence clearly established that the purpose or activity for which the Spas were designed or intended or for which they were maintained and occupied constituted an adult use because the Spas\u2019 use involved an activity distinguished and characterized by emphasis on matters relating to specific sexual activities and specified anatomical areas as defined in the ordinance. Such an adult use was not a permitted use in B \u2014 1 and B \u2014 2 districts. The court concluded that the Spas\u2019 use of their property was permitted only in districts designated by the ordinance as general industrial, or I \u2014 2, and conditionally permitted in areas designated as light industrial, or I \u2014 1.\nAs to the Spas\u2019 argument that their adult business use was protected by first amendment guarantees regarding freedom of speech, the court found that the facts conclusively established that the Spas\u2019 adult business activity did not constitute speech or even expressive conduct. The court determined that no dancing or performance of any nature occurred during the massages. Rather, the Spas\u2019 adult business use involved methodical touching of the male patron by the female employee while she was partially or completely nude. According to the court, the evidence was overwhelming that the Spas\u2019 business was primarily \u201ca physical, sensual encounter of a sexual nature\u201d between the Spas\u2019 employees and their customers and was \u201cdevoid of any element of expression, performance, or communication.\u201d\nEven though the court determined that the Spas\u2019 adult business use was not protected expression, the court considered, as a cautionary measure, the Spas\u2019 theory that the ordinance was unconstitutional as overly restrictive and a prior restraint on freedom of speech. In this regard, the court concluded that the ordinance was constitutional and not overly restrictive because it furthered an important or substantial governmental interest in avoiding the adverse effects of adult business uses on surrounding land. According to the court, this governmental interest was unrelated to the suppression of free expression because it regulated adult business uses to minimize their deleterious effects on other property and to maximize compatibility of other uses. The ordinance\u2019s requirement that adult business uses be located in specific areas of the county constituted no greater restriction than that which was essential to the furtherance of the governmental interest.\nThe court further determined that, even if the Spas\u2019 property were to be afforded first amendment protections, the evidence clearly established that the regulations of the ordinance were content-neutral time, place, and manner regulations designed to serve a substantial governmental interest and did not unreasonably limit alternative avenues of communication.\nAdditionally, the court found that, because the ordinance did not impose any significantly different requirements on conditional use permit applications for adult uses in I \u2014 1 districts from those imposed on other businesses seeking such relief, the ordinance did not impose an unconstitutional prior restraint.\nThe court ordered that the Spas were to be permanently restrained and enjoined from using the property at their locations as adult businesses.\nBefore considering the issues in this case, we address the Spas\u2019 use of numerous footnotes throughout their original brief and reply brief. Supreme Court Rule 341(a) provides that \u201c[flootnotes, if any, shall be used sparingly.\u201d 177 Ill. 2d. R. 341(a). Additionally, Rule 344(b) discourages the use of footnotes in briefs. 155 Ill. 2d R. 344(b). All of the Spas\u2019 footnotes are single spaced and many contain substantive argument that should be presented in the body of the briefs. Their use of footnotes cannot be characterized as \u201csparing.\u201d Moreover, we note that, had the footnotes been integrated into the body of the Spas\u2019 original brief and reply brief, the length of those briefs, which are 68 pages and 26 pages, respectively, would have violated the page limitation of Rule 341(a). See 177 Ill. 2d R. 341(a).\nAs we have previously stated in Kerger v. Board of Trustees of Community College District No. 502, 295 Ill. App. 3d 272 (1997), \u201c[a]dherence to the page limitations and guidelines for footnote usage is not an inconsequential matter,\u201d and parties who ignore the limitations and guidelines set forth in Rule 341(a) do so at their peril. 295 Ill. App. 3d at 275. Accordingly, on our own motion, we strike all of the footnotes from the Spas\u2019 briefs.\nIn their first contention the Spas argue that, under the zoning provisions in effect at the time they opened their establishments, their location in districts zoned B \u2014 1 and B \u2014 2 was lawful and, therefore, they ar\u00e9 entitled to continue to operate as prior nonconforming uses. The County responds that from their inception the Spas were not permitted uses within- the business districts where they were located as the zoning ordinance applicable at the time provided for adult business uses only in districts zoned I \u2014 1 and I \u2014 2.\nThe Spas base their argument on the fact that, at the time they began their operations, the ordinance provided that \u201c[pjhysical culture and health services, masseurs and public baths\u201d were permitted uses in B \u2014 1 and B \u2014 2 districts (Du Page County Zoning Ordinance \u00a7\u00a7 37\u2014 8.1 \u2014 lb, 37 \u2014 8.2\u2014lb (1997)). The Spas reason that they provide masseurs or masseuses within the meaning of the ordinance. The ordinance defines a masseuse or masseure as \u201c[a]ny person who, for any kind of consideration, engages in the practice of massage.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 3.2 (1997). The Spas reason further that, because they give or offer massages by masseuses, they constitute \u201cmassage parlors\u201d as defined in the ordinance. Section 37\u2014 3.2 of the ordinance defines \u201cmassage parlor\u201d as follows:\n\u201cAny massage parlor; turkish, steam, sauna or other bath-house; magnetic healing institute room; place; establishment; or institution where Massage is given or offered by a Masseur or Masseuse.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 3.2 (1997).\nHowever, under the ordinance, a massage parlor constitutes an adult business use. The ordinance defines an adult business use in relevant part as follows:\n\u201cThe use of property for the operation of a Massage Parlor and/or Bathhouse, Massage School, or any use of which a significant or substantial portion involves an activity distinguished or characterized by its emphasis on matters depicting, describing, or relating to *** Specified Anatomical Areas.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 3.2 (1997).\n\u201cSpecified Anatomical Areas\u201d is defined, in relevant part, as \u201c[l]ess than completely or opaquely covered human genitals, pubic region, buttock, anus or female breast below a point immediately above the top of the areola.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 3.2 (1997).\nThe Spas concede that their female employees routinely exposed specified anatomical areas as defined in the ordinance and that this fact led the County to consider the Spas adult business uses. But, they assert, as \u201cmassage parlors\u201d offering masseurs or masseuses, the Spas were a \u201csubset\u201d or \u201csubcategory\u201d of adult business uses and certain subcategories were permitted uses in the business-zoned districts. Under the Spas\u2019 theory, they were permitted uses because the term \u201cmassage parlor\u201d is synonymous with the term \u201cmasseur or masseuse.\u201d Because a masseur or masseuse was a permitted use in the business-zoned districts, the Spas maintain that they had a choice whether to locate in the industrial-zoned districts or the business-zoned districts. Having chosen the business-zoned districts, they were now entitled to operate as a prior nonconforming use.\nInitially, we note that the Spas ignore the fact that, regardless of whether they were a \u201csubcategory\u201d of adult business uses, any adult business use was prohibited by the ordinance from locating within 500 feet of residential areas. Section 37 \u2014 4.16\u20142 of the ordinance provides in relevant part:\n\u201cNo adult business use, either as a permitted use or as a conditional use, shall be maintained: *** (2) within five hundred (500) feet of any of the following zoning districts as provided for under this Ordinance: R \u2014 1, R \u2014 2, R \u2014 3, R \u2014 4, R \u2014 5, R \u2014 6, and R \u2014 7 [which included both single-family and multiple-family residences]; (3) within five hundred (500) feet of a zoned residential district lying within a municipality ***.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 4.16\u20142 (1997).\nHere, the evidence established that the Spas were in violation of section 37 \u2014 4.16\u20142, as Spa 64 was located within 300 feet of a single-family residence and 200 feet from a multiple-family residence, and Lake Street Spa was adjacent to property zoned residential. Consequently, under section 37 \u2014 4.16\u20142 alone, the Spas could not have located in their present locations.\nAs to the Spas\u2019 claim that they were permitted uses in business-zoned districts because they were establishments offering masseurs or masseuses, we find the evidence proved this claim meritless. William Heniff, the zoning administration supervisor for the County, testified that the term \u201cmasseurs\u201d refers to an occupation whereas the term \u201cmassage parlor\u201d refers to a use of property and that the two terms were not synonymous. It was Heniff s testimony that a person engaged in the practice of massage at a hospital or a health club could be considered a masseur or masseuse, and, therefore, the establishment where the massage was being given was independent of the activity itself. Heniff stated that the primary use of property determines what the use of the property is.\nAt any rate, the Spas could not prevail by claiming that because their employees were masseuses their massage parlors constituted permitted uses. Section 37 \u2014 4.3\u20145 of the ordinance provides that, \u201c[e]xcept as hereinafter provided, when a use is not specifically listed as a Permitted or Conditional use in any specific zoning district, such use shall be expressly prohibited.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 4.3\u20145 (1997). While \u201cmasseur\u201d is listed as a permitted use in B \u2014 1 and B \u2014 2 districts, \u201cmassage parlor\u201d is not listed as a permitted use or a conditional use in those districts. \u201cGenerally, a zoning ordinance that specifies numerous permissible uses and was intended to be specific with respect to such uses will be construed to not permit uses that are not specified in the ordinance.\u201d Dottie\u2019s Dress Shop, Inc. v. Village of Lyons, 313 Ill. App. 3d 70, 74 (2000). Because \u201cmassage parlor\u201d is not specified as a permitted use in business-zoned districts and because the ordinance specifically prohibits any use in a specifically zoned district that is not listed as a permitted or conditional use in that district, the Spas\u2019 massage parlors do not constitute permitted uses in B \u2014 1 and B \u2014 2 districts.\nThe Spas point out in their brief that they never denied that the adult business use regulations applied to them. But they assert here that, because the provision listing masseurs as a permitted use in B \u2014 1 and B \u2014 2 districts also applied to them, they were entitled to choose whether they wanted to locate in the business zones or the industrial zones. Even if this assertion were true, the Spas still would not have been entitled to locate in the business zones. Section 37\u2014 4.1\u2014 2 of the ordinance provides:\n\u201cWhere, the conditions imposed by any provision of this Ordinance are either more restrictive or less restrictive than comparable conditions imposed by any other applicable statute, law, ordinance, regulation, or rule, the provision which is most restrictive or imposes the higher standards or requirements shall apply.\u201d Du Page County Zoning Ordinance \u00a7 37 \u2014 4.1\u20142 (1997).\nThe provision pertaining to the location of adult business uses only in industrial zones (Du Page County Zoning Ordinance \u00a7\u00a7 37 \u2014 10.1\u20142v, 37 \u2014 10.2\u2014lc (1997)) is more restrictive and imposes higher standards or requirements than the provision pertaining to the location of masseurs in business zones (Du Page County Zoning Ordinance \u00a7\u00a7 37\u2014 8.1\u2014 lb, 37 \u2014 8.2\u2014lb (1997)).\nIn the case of the regulation of adult business uses, the ordinance provides that the use is subject to the requirements of sections 37\u2014 4.16 \u2014 1 and 37 \u2014 4.16\u20142. Section 37 \u2014 4.16\u20141 points out that, in developing and executing the sections regulating and limiting the location of adult business uses, recognition was given to the deleterious and adverse effects such uses can have upon areas adjacent to them and to the need for controlling the location of these uses to eliminate such effects. Du Page County Zoning Ordinance \u00a7 37 \u2014 4.16\u20141 (1997). Section 37 \u2014 4.16\u20142 establishes specific distances that must be maintained between an adult business use and residential districts, churches, schools, libraries, parks or other publicly operated recreational facilities, and another adult business use. Du Page County Zoning Ordinance \u00a7 37 \u2014 4.16\u20142 (1997). Conversely, the provision regulating the location of masseurs in business zones is not subject to any specific requirements. Because the Spas acknowledge that they were adult business uses and because the provision regulating the location of such uses is more restrictive than that pertaining to the location of masseurs, the adult business use regulation provision applies.\nAs to the services the Spas\u2019 employees offered, April McLaughlin, the manager of Spa 64, acknowledged that the sign in the lobby of the spa listing prices did not refer to the massage sessions as massages but as \u201cerotic encounters.\u201d McLaughlin also acknowledged that the employees offered to perform the massages in various states of undress from lingerie to full nudity. Both DePino and Schar testified that the employee performing a massage on each of them wore nothing but a G-string. Schar also stated that, while the employee was applying pressure to his chest, back, and legs, she rubbed her breasts against him and pressed them up against his cheek.\nClearly, the evidence established that the business use of the Spas\u2019 establishments was for the operation of massage parlors that emphasized an activity distinguished and characterized by its emphasis on matters relating to specified anatomical areas. Consequently, under the ordinance, the Spas\u2019 use of their property constituted an adult business use and, as discussed above, that use was permitted only in areas designated I \u2014 2 or conditionally permitted in areas designated I \u2014 1.\nA use that was not lawful at its inception does not constitute a legal nonconforming use and therefore cannot be protected from elimination for violation of present zoning ordinances. Bainter v. Village of Algonquin, 285 Ill. App. 3d 745, 751 (1996). Accordingly, because the adult business use restrictions and ordinance predated the opening of the Spas and were applicable to the Spas, their respective locations in business-zoned districts were not lawful at their inception and could not constitute legal nonconforming uses.\nNext, the Spas contend that the trial court erred in determining that the activity conducted at their establishments was not protected under the first amendment free speech clause. The Spas assert that their adult business use involved activity, i.e., \u201csexually oriented live entertainment,\u201d which was afforded protection pursuant to first amendment guarantees of free speech. In reviewing judgments pertaining to first amendment guarantees of free expression, we conduct an independent examination of the whole record. Boy Scouts v. Dale, 530 U.S. 640, 648, 147 L. Ed. 2d 554, 563, 120 S. Ct. 2446, 2451 (2000). Our review, therefore, is de novo.\nInitially, we agree with the County that no consideration should be given to the Spas\u2019 attempt to persuade this court to take into account a stipulation that the trial court refused to admit into evidence. In that stipulation the parties stipulated that the Spas\u2019 employees did not perform therapeutic massages but, instead, provided customers with an \u201cerotic entertainment performance.\u201d As the trial court pointed out in denying the admission of the stipulation, the stipulation was entered into at a time when the only issue that the parties were going to trial on was the applicability of the County\u2019s massage establishment license ordinance to the conduct taking place at the Spas and that the court had ruled in favor of the Spas on the issue.\nSubsequent to that time, the County filed a second amended counterclaim and the Spas filed a second amended complaint. As the court correctly stated, the issue in the case then changed to whether the Spas\u2019 establishments constituted adult business uses under the zoning ordinance. Based on these facts, the court determined that it was illogical that the parties intended to bind themselves on the trial of the County\u2019s second amended counterclaim by a stipulation that was entered into prior to the filing of the second amended counterclaim. We agree and find it would have been patently unfair to allow the Spas to use a stipulation that was reached for the purpose of challenging the County\u2019s massage establishment license ordinance as evidence in defense of the County\u2019s second amended counterclaim, which dealt with a different issue.\nA stipulation is an agreement by the parties regarding an issue before the court. Dawdy v. Sample, 178 Ill. App. 3d 118, 127 (1989). A court will not enforce a stipulation if it is unreasonable, the result of fraud, or violative of public policy. American Pharmaseal v. TEC Systems, 162 Ill. App. 3d 351, 355 (1987). The trial court has the discretion to determine the validity and reasonableness of a stipulation. Kew v. Kew, 198 Ill. App. 3d 61, 64 (1990). Based on the record before us, we find that the trial court did not abuse its discretion in determining that it was unreasonable to allow the stipulation in question into evidence on the trial of the County\u2019s second amended counterclaim and the Spas\u2019 second amended complaint.\nIn discussing what activity can be considered expression, the United States Supreme Court stated, in dicta, in City of Dallas v. Stanglin, 490 U.S. 19, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989):\n\u201cIt is possible to find some kernel of expression in almost every activity a person undertakes \u2014 for example, walking down the street or meeting one\u2019s friends at a shopping mall \u2014 but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.\u201d 490 U.S. at 25, 104 L. Ed. 2d at 25-26, 109 S. Ct. at 1595.\nThe Court has rejected the view that \u201can apparently limitless variety of conduct can be labeled \u2018speech\u2019 whenever the person engaging in the conduct intends thereby to express an idea.\u201d United States v. O\u2019Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 679, 88 S. Ct. 1673, 1678 (1968). But, the Court has also acknowledged that conduct or activity may be \u201csufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.\u201d Spence v. State of Washington, 418 U.S. 405, 409, 41 L. Ed. 2d 842, 846, 94 S. Ct. 2727, 2730 (1974). In determining whether a particular activity possesses \u201csufficient communicative elements to bring the First Amendment into play,\u201d the Court has asked whether \u201c \u2018[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.\u2019 \u201d Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 353, 109 S. Ct. 2533, 2539 (1989), quoting Spence, 418 U.S. at 410-11, 41 L. Ed. 2d at 847, 94 S. Ct. at 2730. In concluding that the activity at issue in Spence was a form of protected expression, the Court relied on the nature of the activity, combined with the factual context and environment in which it was undertaken. Spence, 418 U.S. at 409-10, 41 L. Ed. 2d at 846, 94 S. Ct. at 2730.\nThe Spas maintain that they offered massage services in connection with erotic conversation, dancing, and role playing, all of which were accompanied by music in dimly lit, mirror-lined rooms, and that this activity constituted a performance or show. According to the Spas, the performances held at their establishments were no different from nude performance dancing, which has been held protected on numerous occasions. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 115 L. Ed. 2d 504, Ill S. Ct. 2456 (1991); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). An important difference, however, between the instant case and those wherein nude dancing has been determined to be protected expressive conduct is that in the latter situation a performance did, in fact, occur. In one of the two establishments involved in Barnes, totally nude go-go dancers performed for customers in a bar while in the other establishment, a \u201cbookstore,\u201d customers inserted coins in a mechanism which permitted them to observe nude and seminude dancers through glass panels. Similarly, in Schad, coin-operated mechanisms allowed customers to watch dancers, usually nude, perform behind glass panels. The activity occurring at the Spas was not in any manner similar to that occurring in Barnes and Schad.\nAccording to April McLaughlin, the manager of Lake Street Spa, the Spas provided a \u201cvisually as well as auditory [sic] soothing and relaxing massage.\u201d McLaughlin stated that visual stimulation was provided by the completely mirrored and dimly lit massage rooms while auditory stimulation was provided by sensual music and conversation. It was McLaughlin\u2019s testimony that the massages included \u201cacting or role playing *** in the sense that the girls often danced.\u201d McLaughlin stated that a patron could choose, for an additional fee, to have the massage worker wear only lingerie, be topless, or appear totally nude. McLaughlin acknowledged that some patrons chose none of these clothing options and preferred to have the massage worker fully clothed.\nBoth Detective Mark DePino and Officer Dennis Schar, who visited the Spas, testified that at the time of their visits there was no dancing or any other kind of performance by the Spas\u2019 female employees. Rather, in each case, the employee gave the man a nude massage while she was wearing nothing but a G-string. According to DePino\u2019s and Schar\u2019s testimony, the activities in question consisted only of the physical touching and rubbing of their bodies combined with a small element of communication, which consisted mainly of small talk.\nBased on the evidence presented, we conclude that the nature of the activity at the Spas and the environment in which it was undertaken amounted primarily, as the trial court found, to a \u201cphysical, sensual encounter of a sexual nature between the Spas\u2019 employees\u201d and their patrons or customers. Providing a massage in a nude or partially nude state to enhance the sexual experience of a nude paying patron does not constitute expression that the first amendment protects. While no Illinois case has specifically reached this same conclusion, we find instructive a Wisconsin case that has determined that a \u201cmasseuse\u2019s actions in disrobing do not constitute \u2018speech\u2019 which the first amendment protects\u201d (City of Madison v. Schultz, 98 Wis. 2d 188, 203, 295 N.W2d 798, 805 (1980)). According to the Court of Appeals of Wisconsin, \u201c[t]he only idea expressed by the masseuse was her willingness to take her clothes off to enhance the sexual experience of the paying patron.\u201d Schultz, 98 Wis. 2d at 203, 295 N.W2d at 805. Such was also the situation in the present case.\nThe commercial activities at the Spas\u2019 establishments were of a physical and sexual nature occurring within the environment of a massage parlor. There was no intent to convey a particularized message. While there existed a \u201ckernel of expression\u201d in the activity that occurred at the Spas, that \u201ckernel\u201d was not sufficient to bring the activity within the protection of the first amendment.\nAs the activities occurring at the spas do not constitute expression protected under the first amendment, we need not consider the Spas\u2019 assertion that the ordinance is unconstitutional as overly restrictive and a prior restraint on freedom of speech. Thus, for the reasons set forth, we affirm the judgment of the circuit court of Du Page County.\nAffirmed.\nINGLIS and THOMAS, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BOWMAN" } ], "attorneys": [ "J.D. Obenberger and Reed C. Lee, both of J.D. Obenberger & Associates, of Chicago, for appellants.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Ellen L. Champagne, Kevin D. Mack, and Robert G. Rybica, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "WARREN J. WRIGHT, d/b/a Lake Street Spa and Spa 64, et al., Plaintiffs and Counterdefendants-Appellants, v. THE COUNTY OF DU PAGE, Defendant and Counterplaintiff-Appellee.\nSecond District\nNo. 2-99-0743\nOpinion filed September 13, 2000.\nJ.D. Obenberger and Reed C. Lee, both of J.D. Obenberger & Associates, of Chicago, for appellants.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Ellen L. Champagne, Kevin D. Mack, and Robert G. Rybica, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0028-01", "first_page_order": 48, "last_page_order": 63 }