Robin O’g Rady , David Jakes v. Village of Libertyville , An Illinois Municipal Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2334
R OBIN O’G RADY , D AVID J AKES , AND
D E T ENDEVOUS , I NCORPORATED ,
AN I LLINOIS C ORPORATION ,
Plaintiffs-Appellants,
v.
V ILLAGE OF L IBERTYVILLE , AN
I LLINOIS M UNICIPAL C ORPORATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5283—Milton I. Shadur, Judge.
____________
A RGUED J ANUARY 8, 2002—D ECIDED S EPTEMBER 13, 2002
____________
Before P OSNER , C OFFEY , and D IANE P. W OOD , Circuit
Judges.
D IANE P. W OOD , Circuit Judge. Robin O’Grady and David
Jakes opened De Tendevous, Inc., a personal services salon,
in Libertyville, Illinois in April 1999. (For convenience, we
refer to all three as “De Tendevous” in this opinion). De
Tendevous’s problems began shortly thereafter, when a
sting operation by the Libertyville police discovered evi-
dence of prostitution at the salon. Shortly before the bust,

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2 No. 01-2334
the Village of Libertyville had passed Village Ordinance
99-0-56 (the Ordinance), regulating the operation of
massage parlors and requiring that they be licensed.
Rather than applying immediately for a license under the
new ordinance, De Tendevous turned to the federal court
with this suit challenging the Ordinance and requesting
a temporary restraining order from enforcement of the
licensing requirement. The complaint also alleged that a
violation of the plaintiffs’ Fourth Amendment rights
occurred when building inspectors conducted a search of the
salon’s premises. Later, after De Tendevous had unsuccess-
fully applied for a license, it also attempted to contend that
the denial was unlawful. The district court construed De
Tendevous’s claims as (1) a claim that the ordinance was
unconstitutional because it violated the Ex Post Facto
Clause of the Constitution; (2) an allegation of a § 1983
violation by the Village for the search of the premises at the
time of the sting operation; and, (3) a contention that the
denial of a license was unlawful under state law. It then
granted summary judgment in favor of the Village on all
counts. This appeal followed. Finding De Tendevous’s argu-
ments to be totally without merit, we affirm the judgment
of the district court.
I
While De Tendevous ostensibly offered nail, tanning,
waxing, and massage services, as it declared in a zoning
application filed in April 1999, it apparently also provided
sexual services.
On July 22, 1999, Village police conducted their sting
operation. During the sting, Meloni Goodson, a De Tende-
vous masseuse, was arrested for performing sexual acts on
a police officer. She was later convicted on prostitution
charges based on this occurrence. The officers searched the
premises incident to Goodson’s arrest after obtaining con-

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No. 01-2334 3
sent from De Tendevous’s receptionist; neither O’Grady nor
Jakes was present at the time. The search uncovered evi-
dence of prostitution and alerted the officers to possible
building code violations. This led them to call in a building
inspector, who searched the premises, again with the re-
ceptionist’s consent, and took note of several violations.
When he was finished, the inspector “red-taped,” or shut
down, the massage parlor. De Tendevous reopened several
days later, apparently in compliance with the building code
(but still unlicensed).
On July 13, 1999, prior to the sting operation, De Tende-
vous received a copy of a letter from Libertyville’s Chief of
Police, advising all massage establishments that a new
Village ordinance, Ordinance 99-0-56, had been passed
on June 22 to regulate the operation of massage parlors.
Among other things, the Ordinance required massage estab-
lishments to be licensed, to be run by a certified massage
therapist, and to be in compliance with certain standards of
decency and hygiene. Every masseur or masseuse employed
had to be licensed by the Village after obtaining certifica-
tion from an accredited massage institution that required
at least 500 hours of classroom study and another 100
hours of clinical experience. The July 13 letter estimated
that the effective date of the Ordinance would be July 23,
1999.
Aside from the July bust, nothing happened for a few
months after the effective date of the Ordinance, even
though De Tendevous had not applied for a license. On
October 4, the Chief of Police requested that De Tendevous
cease offering massage services immediately because it was
operating without a massage license in violation of the
Ordinance. That finally prompted De Tendevous to apply
for the license, but the Village Administrator denied the
application on April 3, 2000. A hearing to challenge the
denial took place on June 7, 2000, before Village President
Duane Lusaka. President Lusaka affirmed the denial of the

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4 No. 01-2334
license on the grounds that Jakes, considered a manager of
De Tendevous, did not qualify as a certified massage thera-
pist as required by the Ordinance, and that the prostitution
conviction of one of the employees would have been grounds
for revoking the license under the Ordinance and was, a
fortiori, a ground for refusing to issue a license in the first
place.
A month after receiving notification of the newly passed
Ordinance (and six and a half months before applying for a
license) De Tendevous filed this lawsuit against the Village.
In March 2000, both parties filed motions for summary
judgment and cross-responses. The Village’s motion argued
that the Ordinance was not properly subject to this dispute
because the Village never attempted to enforce it against
De Tendevous, and that in any event its enforcement (sub-
sequent to the filing of the complaint) was in accordance
with all the process due. As to the Fourth Amendment
claim, the Village argued that municipal liability for an
unconstitutional policy or custom needed to be proved but
was not alleged by De Tendevous. De Tendevous’s motion
for summary judgment focused on entirely different issues.
For the first time, De Tendevous argued that the Ordinance
should be invalidated as an ex post facto law under article
I, § 10, clause 1, of the United States Constitution, a claim
that it asserted was encompassed within Count I of its
complaint. The principal reason it gave in support of this
argument was the brief period of notice the Village gave De
Tendevous to come into compliance with its new obligations:
“only” 14 days. It also argued that it was impermissible to
deny De Tendevous a license because of Goodson’s prostitu-
tion conviction and Jakes’s lack of a massage therapy
certificate.
The district court entered summary judgment for the
Village on all counts and denied De Tendevous’s motion. On
the Fourth Amendment claim, it found for the Village
because of De Tendevous’s failure to present evidence that

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No. 01-2334 5
the Village had a policy or custom of performing unreason-
able searches—evidence that was necessary to establish
municipal liability under Monell v. Department of Soc.
Servs., 436 U.S. 658, 690-91 (1978). As to the compatibility
of the Ordinance with the Ex Post Facto Clause, the district
court (construing the complaint liberally to encompass this
kind of claim) found that De Tendevous had standing to
bring the challenge, but that on the merits the allegation
was frivolous, because the Ordinance was not a penal
statute nor did it purport to render illegal any operation of
a massage establishment before its effective date. With
respect to the alleged violation stemming from the use of
the prostitution conviction as grounds to deny the license
application, the court found that the issue was not properly
before it, as there was no mention of it in the complaint.
Finally, the district court dismissed the claim based on the
denial of the application because it was not pleaded in any
amended complaint and because there was no reason to
exercise supplemental jurisdiction over it once the court
disposed of the federal claims.
II
On appeal, De Tendevous presents two issues: that the
Ordinance is an ex post facto law (principally because it did
not allow De Tendevous sufficient time to comply) and that
the decision to deny the license was not justified. We review
a district court’s grant of summary judgment de novo, ex-
amining the facts in a light most favorable to the non-
moving party, and drawing all reasonable inferences in its
favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471
(7th Cir. 2002).
A. Ex Post Facto Argument
While De Tendevous did not advance a theory of an ex
post facto violation until the summary judgment stage, we

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6 No. 01-2334
agree with the district court that the complaint was ade-
quate to put the Village on notice of such a claim. A plain-
tiff is not required to set forth a legal theory to match the
facts, so long as some legal theory can be sustained on the
facts pleaded in the complaint. See, e.g., Wudtke v. Davel,
128 F.3d 1057, 1061-62 (7th Cir. 1997) (no particular legal
theory needs to be specified, so long as the facts put the
defendant on notice). While the theory that De Tendevous
originally put forth was a due process/takings claim, the
facts alleged are sufficient to support a claim that the
Ordinance would have violated their constitutional rights
if it were found to be an ex post facto law.
A law violates the Ex Post Facto Clause, see U.S. CONST .
art. I, § 10, cl. 1, if it punishes as criminal conduct an act
that was innocent when done, or makes more burdensome
the punishment for a crime after its commission. Collins v.
Youngblood, 497 U.S. 37, 41-42 (1990). The clause is aimed
solely at penal statutes. See Kansas v. Hendricks, 521 U.S.
346, 370 (1997); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-392
(1798). There is a sense in which the Ordinance at issue
here has a penal aspect, as its application may give rise to
criminal penalties. For instance, to the extent that De
Tendevous continued providing massage services after it
received the Chief of Police’s letter, it was subject to the
penalties set forth in Section 13-122 of the Ordinance:
“Every person . . . who gives massages or operates a
massage establishment . . . without first obtaining a license
. . . shall be guilty of a misdemeanor and upon a finding of
guilty such person shall be punished by a fine of not less
than Two Hundred Fifty Dollars.” However, a law is not
an ex post facto law if it does not aim to serve solely pu-
nitive goals. See Bae v. Shalala, 44 F.3d 489, 492-94 (7th
Cir. 1995); Gilbert v. Peters, 55 F.3d 237, 238-39 (7th Cir.
1995). In the case of the Village’s Ordinance, there are aims
other than punitive ones that motivated the enactment of
the Ordinance. The purpose of the legislation is one of the

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No. 01-2334 7
main indications of whether a law should be deemed
punitive in nature. See Trop v. Dulles, 356 U.S. 86, 96
(1958). The preamble to the Ordinance mentions a number
of non-punitive reasons for its passage, including the pre-
vention of the use of massage parlors as places of prosti-
tution, the preservation of the public health, safety, and
welfare of the Village, and the desire to prevent the spread-
ing of disease through unsanitary practices and facilities.
Most importantly, however, even assuming that the Or-
dinance was a penal statute, the Ex Post Facto Clause
applies only to laws that render illegal—or punish more
severely—conduct performed before the day the law was put
into effect. See, e.g., California Dept. of Corrs. v. Morales,
514 U.S. 499, 506 n.3 (1995) (inquiry focuses on whether a
new law “alters the definition of criminal conduct or
increases the penalty by which a crime is punishable.”).
Village Ordinance 99-0-56 is entirely prospective in opera-
tion: it does not aim to punish conduct that was deemed
innocuous prior to its passage. The Supreme Court stressed
this point in Lynce v. Mathis, 519 U.S. 433, 441 (1997),
quoting Weaver v. Graham, 450 U.S. 24, 29 (1981): a nec-
essary (though not sufficient) characteristic of a law that
violates the clause is that it must “ ‘apply to events occur-
ring before its enactment.’ ” De Tendevous does not contend
that the Village tried to apply the Ordinance to events prior
to its enactment, or that the Ordinance on its face applies
to such events. By its terms, the Ordinance attaches pen-
alties only to salons operating without a license after its
effective date—and there is nothing retroactive about that.
De Tendevous next argues that a denial of the license
based on an arrest that occurred prior to the passage of the
Ordinance amounts to a retroactive form of punishment.
This argument is misguided for several reasons. As an
initial matter, if anyone can assert such a claim, it is
Meloni Goodson, whose unlawful sexual act is now subject
to more consequences than it was at the time she performed

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8 No. 01-2334
it (although, because the new consequences are not punitive
for her, there is no ex post facto problem in Goodson’s case
either). De Tendevous has no stake in how severely Good-
son is punished. More fundamentally, it is not a violation of
the Ex Post Facto Clause to disqualify persons based on
prior acts from a certain state-based entitlement, if that
denial is a reasonable means for achieving a legitimate
state aim. See De Veau v. Braisted, 363 U.S. 144 (1960)
(upholding statute disqualifying ex-felons from waterfront
union office even though their convictions were prior to the
passage of the statute). (We recognize that courts have
disagreed about what it takes to categorize a statute as
punitive, and that the Ninth Circuit has held that Alaska’s
sex offender registration law requiring convicted sex of-
fenders to register with the police is punitive for purposes
of the Ex Post Facto Clause. See Doe I v. Otte, 259 F.3d 979
(9th Cir. 2001), cert. granted, 122 S. Ct. 1062 (2002) (No. 01-
729). The Libertyville ordinance, however, on its face does
nothing more than establish prospective criteria for licens-
ing a type of commercial establishment. It does not pile on
additional disabilities for convicted individual offenders like
the Alaska statute in Doe I. Thus, we do not believe that the
Supreme Court’s forthcoming decision in Doe I is likely to
affect our analysis here.)
De Tendevous’s last attempt to squeeze the Ordinance
under the Ex Post Facto Clause is creative at best. As the
law requires that massage therapists be certified, and certi-
fication requires at least 500 hours of study, De Tendevous
argues that it was impossible for existing therapists to
come into compliance between the time of the law’s passage
and its effective date. While this may be true, it is of no
help to De Tendevous. The masseuses do not face punish-
ment for providing unlicensed massages in the past, and
surely De Tendevous does not suggest that going forward
there are no properly certified masseuses who could have
been hired by the salon. There simply is no ex post facto

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No. 01-2334 9
problem absent retrospective application of the Ordinance
to the pre-Ordinance activities. See Lynce, 519 U.S. at 441.
(As an aside, had its employees begun the requisite training
when De Tendevous first learned about the ordinance, they
would have had plenty of time to complete it before the
Village police came knocking on their doors months after
the enactment of the Ordinance.)
Finally, De Tendevous concedes in its appellate brief that
“the Ordinance may not, technically, punish past actions.”
We agree that the Ordinance does no such thing, and as
retroactivity is a central requirement for finding an ex post
facto violation, Collins, 497 U.S. at 43, De Tendevous’s
entire argument fails.
B. Denial of the License
De Tendevous’s second argument is that the Village
denied its application for a license for the wrong reasons.
The district court declined to entertain the issue because it
was not properly pleaded and because, as a claim arising
under state law, it was best to dismiss it without prejudice
once the federal issues had been disposed of. A decision to
dismiss supplemental state-law claims after the dismissal
of the federal claims is reviewed for abuse of discretion.
Landstrom v. Illinois Dept. of Children & Family Servs.,
892 F.2d 670, 679 (7th Cir. 1990).
We agree with both grounds the district court invoked for
rejecting De Tendevous’s second claim and see no need
to elaborate much further here. The original complaint
said nothing about the denial of the license because De
Tendevous had not yet applied for a license when it filed the
complaint. Even after De Tendevous obtained leave of the
court to file an amended complaint in November 1999, it
failed to do so. The Village properly objected when De
Tendevous tried to introduce the argument at the summary

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10 No. 01-2334
judgment stage, and the district court was well within its
discretion to rule that the issue had not been properly
presented. Furthermore, having dismissed all the federal
causes of action, the district court did not err in dismissing
the state law claim. While 28 U.S.C. § 1367(a) gives a
federal court supplemental jurisdiction to decide state law
claims that form part of the same claim or controversy on
which the federal law claims are based, 28 U.S.C. § 1367(c)
provides that a district court may decline to exercise sup-
plemental jurisdiction when “the district court has dis-
missed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). That is what the district court did
here, quite reasonably. The federal courts have little or
nothing to say about whether a Village president properly
applied a Village ordinance to a local establishment.
We A FFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-13-02

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