In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2669
ERIC JOELNER, FISH, INC. d/b/a XXXTREME
ENTERTAINMENT, FREE SPEECH, INC.,
and FIRST AMENDMENT, INC.,
                                        Plaintiffs-Appellants,
                              v.


VILLAGE OF WASHINGTON PARK, ILLINOIS,
                                          Defendant-Appellee.

                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 03 C 325—G. Patrick Murphy, Chief Judge.
                        ____________
   ARGUED NOVEMBER 7, 2003—DECIDED AUGUST 4, 2004
                   ____________



  Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
  KANNE, Circuit Judge.


                      I. Background
A. The Parties
 Eric Joelner, a resident of the Village of Washington
Park, Illinois, is president and sole shareholder of Fish, Inc.
2                                                No. 03-2669

d/b/a XXXtreme Entertainment, Free Speech, Inc., and First
Amendment, Inc. (collectively, “Plaintiffs” or “Joelner”). All
of these entities conduct, or seek to conduct, adult enter-
tainment business within the corporate limits of Washing-
ton Park. Joelner, through Fish, Inc., has owned and
operated an adult video and bookstore located at 2226
Kingshighway since at least 1995.1
   In an effort to balance Washington Park’s revenue needs
and its desire to protect its citizens from what ostensibly it
views as the negative effects of adult entertainment bus-
inesses, the municipality has enacted ordinances, which
limit the number of adult entertainment outlets within its
corporate limits, including both “bookstores” and “cabarets,”
see infra Part I.B., and impose license fees for such estab-
lishments. However, with a population of only 5,300
covering 2.5 square miles at the confluence of two interstate
highways leading into St. Louis, Missouri, adult entertain-
ment has been the industry of Washington Park. As of May
2003, there were four licensed, one unlicensed, and two
newly licensed adult cabarets. Each licensed cabaret
generates around $100,000 annually in licensing and other
fees for the Village. And because the population of Washing-
ton Park decreased by more than 2,000 residents between
1990 and 2000, with a corresponding loss of about $300,000
a year in state funding, the income which the adult enter-
tainment industry generates for the Village is critical. John
McCormick, Cash-strapped Town Relies on Strip Clubs to
Pay Bills, Chi. Trib., Apr. 29, 2003, at A1. (R. 1, Ex. 11.)




1
  Joelner claims to have been doing business at the 2226
Kingshighway location since 1990 or 1991. But on the record, we
can know affirmatively only that Joelner has been licensed to
operate such a business since 1995.
No. 03-2669                                                       3

B. The Ordinances
   Ordinance 069-99, adopted by the Village Board of Trustees
on September 7, 1999, defined “adult entertainment” as
anything “featuring acts, performances, videos, and/or movies,
involving nudity, or partial nudity, but within the permitted
community standards of the Village of Washington Park . . . .”
It limited the number of such establishments to four, imposed
an annual license fee of $3000, prohibited the sale or other
transfer of licenses, set hours of operation, and included a
severability clause.2
  Then, four months later on January 11, 2000, Ordinance
01-00, although making no express reference to the prior
ordinance, increased the annual licensing fee tenfold to
$30,000. The stated goal of the increase was to protect the
“public health, safety, and welfare” and to defray the in-
crease in police, fire, and other costs associated with adult
entertainment establishments.
  Ordinance 01-22, adopted two years later on November 6,
2002, differentiates between “adult entertainment” es-
tablishments.3 It defines “adult bookstores” as “[a]ny
business which sells what is commonly known as adult en-
tertainment books, magazines, other reading materials,
movies, novelties, or paraphernalia” and “adult cabarets” as


2
    All ordinances referred to herein are included in the appendix.
3
   Problematically, neither Ordinance 01-00 nor Ordinance 01-22
explicitly refer to the relevant prior ordinances. But since each of
these ordinances includes the word “amending” in its title, we are
left to presume that, to the extent that the later ordinances
conflict with prior ordinances, the prior ordinances no longer have
effect. In addition, Ordinance 01-22 almost entirely subsumes the
original ordinance, No. 069-99. However, because Ordinance 01-22
refers repeatedly to “adult entertainment,” but nowhere defines
it, we also presume that the definition of “adult entertainment”
proffered in Ordinance 069-99 still has effect.
4                                                  No. 03-2669

“[a]ny business with adult entertainment which includes live
persons performing adult entertainment and which includes
nudity.” The annual licensing fees were altered as well:
$10,000 for an adult bookstore, and $30,000 for a cabaret
($30,000 was the annual fee for either type of adult business
under Ordinance 01-00). A permissible quarterly fee payment
schedule was established in section 4, and the following pro-
visions from Ordinance 069-99 were preserved in their en-
tirety, although renumbered: the numerical “[l]imitation and
[p]urpose” (now as section 5), the license transfer prohibition
(section 6), hours of operation (section 7), and the severability
provision (section 8).


C. Joelner’s Clashes With the Village
   In January of 2003, the first in a series of disagreements
over these ordinances began between Joelner and the Village.
Joelner objected to the “increase” in annual licensing fees to
$10,000, established in November of 2002 through Ordinance
01-22, for his existing bookstore at 2226 Kingshighway. Ap-
parently, notwithstanding both Ordinances 069-99 and 01-00
which had, prior to Ordinance 01-22, set license fees for adult
bookstores at $3000 and $30,000 respectively, Joelner had
only been paying $100 per year to operate his business, with-
out any documented objection. But in a letter dated December
23, 2002, the Village informed him of the “new” annual adult
bookstore fee and requested that he make a first-quarter
payment of $2500. On or around January 24, 2003 Joelner did
so, but also remitted in the same check an additional $7500
first-quarter payment for an adult cabaret license.
   The Village returned the $10,000 check to Joelner on
February 20, informed him that his existing business was
licensed only as a bookstore, not as a cabaret, and requested
that Joelner forward his first-quarter bookstore fee as soon
as possible. However, he made no further payment.
  Notwithstanding this dispute with the Village over the fee
for his bookstore’s annual license, Joelner, through various
No. 03-2669                                                       5

corporate entities, attempted to obtain three new adult
entertainment licenses for properties located at 2226
Kingshighway, 2215-2221 Kingshighway, and 5900-6000
Bunkum Road.4 At the April 15, 2003 Village Board of
Trustees meeting, Joelner, as Fish, Inc., sought a license to
expand his current bookstore business at 2226 Kingshighway
to include cabaret entertainment, and, as First Amendment,
Inc., sought a license to open a new combination cabaret
and bookstore at 2215-2221 Kingshighway. As Joelner’s
requests were the final item on the Board’s agenda, before
any discussion or mention of his license applications,
Ordinance 01-27 was adopted, increasing the number of
adult businesses allowed in Washington Park from four to
six.5
  After the Board approved the ordinance, it then immedi-
ately granted the two newly available licenses—but not to
Joelner. One license was awarded to a former village police
chief’s son, a convicted felon, whose application did not ap-


4
  We cannot discern whether Joelner, personally or through his
various corporate entities, had an ownership interest in the prop-
erties located at 2226 Kingshighway, 2215-2221 Kingshighway,
and 5900-6000 Bunkum Road sufficient to meet the standing
requirement. See also R. 2, Ex. 10, pp. 16-17 (transcript of Village
Board meeting on April 15, 2003 where questions of ownership
were raised). It appears likely that Joelner at least has standing
with respect to the 2226 Kingshighway location as he has been
doing business there since 1995, but given that the resolution of
this question is not central to the outcome here, we cannot and do
not now make even a preliminary determination regarding
standing.
5
  Ordinance 01-27 specifically states in its title that it “Amend[s]
the Village of Washington Park, Illinois Ordinance No. 01-22,
Section 5.” Hence, we presume that the other sections of Ordi-
nance 01-22 (and, by implication, section 3 of Ordinance 069-99,
see supra note 3) remain in full effect. Ordinance 01-27 can be
found in the appendix.
6                                                No. 03-2669

pear to be on the agenda, and the other to the owner of a
trucking firm in the Village, whose application was on the
agenda, immediately preceding Joelner’s.
  The Board then temporarily denied Joelner’s two applica-
tions, accused Joelner of having past-due license fees for his
currently operating bookstore (whether the Board was
concerned with only the November 2002 fee increase or other
arrearages is unclear), discussed revocation of Joelner’s
bookstore license, and finally voted to hold a hearing at a
later time about the 2226 Kingshighway business.
  Before the Village Board next convened, Joelner reached
an informal agreement with the Village whereby he agreed
to postpone the filing of any lawsuit against the Village
until after June 1, in exchange for the Village’s assurances
that they would not seek to terminate his bookstore license
during that same time. The Village continued to urge
Joelner to “pay his delinquent adult bookstore fees.”
  Then at the next meeting on May 6, the Board briefly
discussed the status of Joelner’s 2226 Kingshighway busi-
ness, and was informed by its attorney that negotiations
were proceeding between Joelner and the Village regarding
the disputed arrearages. The Board took no further action
regarding the 2226 Kingshighway business, and then later,
during that same meeting, considered Joelner’s third li-
cense application seeking to open a combination adult
cabaret and bookstore at 5900-6000 Bunkum Road, as Free
Speech, Inc. Based upon the alleged arrearages and the
Board’s claimed desire to avoid an over-saturation of adult
businesses at that particular location (another adult enter-
tainment outlet was licensed for a property immediately
adjacent to that proposed by Joelner), the Board denied this
third and final application.
  After negotiations regarding the 2226 Kingshighway
business apparently failed, Joelner filed suit against the
No. 03-2669                                                7

Village on May 23, 2003 in the Southern District of Illinois
and asserted that the ordinances at issue were unconstitu-
tional restrictions of protected speech both on their face
and, with respect to the numerical restriction, as applied.
Joelner also filed a preliminary injunction motion to pre-
vent enforcement of the ordinances, and to force the Village
to grant the three requested licenses. Again Joelner and the
Village reached an informal agreement, whereby Joelner
was allowed to continue to operate his existing bookstore
pending a ruling on the preliminary injunction.
  After a hearing on June 12, 2003, the district court
granted in part and denied in part Joelner’s request for a
preliminary injunction. The court found the ordinances
constitutional and refused to prohibit the Village from
enforcing the ordinances with respect to both the numerical
limitations and licensing fees imposed on adult entertain-
ment outlets. It also refused to require the Village to issue
any cabaret licenses to Joelner for the new locations.
However, the court did order the Village to allow Joelner to
continue to operate his current bookstore business at 2226
Kingshighway, and also to consider in a new hearing
Joelner’s application for a cabaret license for that same
location, so long as he paid any arrearages and the newly
approved November 2002 fees. This appeal followed.


                       II. Analysis
  For the reasons set forth below, we find that the district
court correctly refused to preliminarily enjoin the Village
from enforcing the two ordinances, and we further find that
the court appropriately granted the preliminary injunction
requiring the Village to allow Joelner to continue to operate
his bookstore business at 2226 Kingshighway. However, we
also determine that the district court erred in granting the
injunction requiring Joelner to pay the disputed fees and/or
arrearages in order to continue operating his bookstore and
8                                                   No. 03-2669

requiring the Village to conduct a new hearing to consider
Joelner’s cabaret license application for the 2226
Kingshighway location.
  Under the First Amendment, “Congress shall make no
law . . . abridging the freedom of speech . . . .” U.S. Const.
amend. I. The Free Speech Clause applies to the states by
operation of the Fourteenth Amendment’s due process clause.
E.g., Ben’s Bar, Inc. v. Vill. of Somerset, 

, 707 (7th
Cir. 2003) (citations omitted).
   In order to obtain a preliminary injunction, the moving
party must show that: (1) they are reasonably likely to suc-
ceed on the merits; (2) no adequate remedy at law exists; (3)
they will suffer irreparable harm which, absent injunctive
relief, outweighs the irreparable harm the respondent will
suffer if the injunction is granted; and (4) the injunction will
not harm the public interest. See Erickson v. Trinity Theatre,
Inc., 

, 1067 (7th Cir. 1994). If the movant can
meet this threshold burden, then the inquiry becomes a “slid-
ing scale” analysis where these factors are weighed against
one another. See AM General Corp. v. DaimlerChrysler Corp.,

, 804 (7th Cir. 2002); Connection Distrib. Co. v.
Reno, 

, 288 (6th Cir. 1998); 

; see also Nat’l People’s Action v. Vill. of Wilmette, 

, 1110-11 (7th Cir. 1990). In reviewing a district
court’s denial or grant of a preliminary injunction, we examine
legal conclusions de novo, findings of fact for clear error, and
the balancing of the previously noted factors for abuse of
discretion. Anderson v. U.S.F. Logistics (IMC), Inc., 

, 474 (7th Cir. 2001).
  When a party seeks a preliminary injunction on the basis
of a potential First Amendment violation, the likelihood of
success on the merits will often be the determinative factor.
Connection Distrib. 

, cited in ACLU of
Ken. v. McCreary, 

, 445 (6th Cir. 2003); see,
e.g., Brownsburg Area Patrons Affecting Change v. Baldwin,
No. 03-2669                                                   9

, 507 (7th Cir. 1998). “The loss of First Amend-
ment freedoms, for even minimal periods of time, unques-
tionably constitutes irreparable injury,” Elrod v. Burns, 

, 373 (1976), and money damages are therefore
inadequate, Nat’l People’s 

. Con-
comitantly, there can be no irreparable harm to a munici-
pality when it is prevented from enforcing an unconstitu-
tional statute because “ ‘it is always in the public interest to
protect First Amendment liberties.’ ” Connection Distrib.

(citing G & V Lounge, Inc. v. Mich.
Liquor Control Comm’n, 

, 1079 (6th Cir.
1994)); cf. Homans v. Albuquerque, 

, 1244
(10th Cir. 2001) (“[W]e believe that the public interest is
better served by . . . protecting [ ] core First Amendment
right[s]”), cited in Newsom v. Albemarle County Sch. Bd.,

, 261 (4th Cir. 2003) (“Surely, upholding
constitutional rights serves the public interest.”).
  However, it is sometimes necessary to inquire beyond the
merits, see MacDonald v. Chicago Park Dist., 

,
358 (7th Cir. 1997) (per curiam), particularly when the
challenged statute regulates the adult entertainment
industry. “[E]ven though we recognize that the First
Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is
manifest that society’s interest in protecting this type of
expression is of a wholly different, and lesser, magnitude
than the interest in untrammeled political debate . . . .” City
of Erie v. Pap’s A.M., 

, 294 (2000) (emphasis
added) (internal quotations omitted). Furthermore, the
purpose of adult entertainment regulations often is to
minimize the deleterious secondary effects that may ac-
company adult entertainment businesses (e.g., increased
crime rates, decreased property values). See City of Renton
v. Playtime Theatres, Inc., 

, 47 (1986). Indeed,
Washington Park proffers that very rationale here. There-
fore, Joelner’s request for a preliminary injunction based
10                                               No. 03-2669

upon his claim that the Village’s adult entertainment ordi-
nances are unconstitutional implicates two conflicting
public interests—protecting First Amendment liberties and
minimizing any harmful secondary effects of such busi-
nesses. Cf. Pap’s 

.
  We note that this interlocutory appeal of a preliminary
injunction (granted in part and denied in part) cannot
result in a conclusive determination of the constitutional
merits of Joelner’s claims. See, e.g., 

(citing Ayres v. City of Chicago, 

, 1013
(7th Cir. 1997)). The appellate record contains only three or
four items that contribute substantially to the factual
background of this case: Joelner’s complaint and request for
a preliminary injunction, the Village’s motion in opposition
to the preliminary injunction, and the preliminary injunc-
tion hearing transcript and evidence. As a result, numerous
critical factual ambiguities plague the record, including, but
not limited to: what inquiries were conducted by the Village
and what findings were made to support its adult entertain-
ment ordinances; exactly how many adult establishments
are currently operating—with or without licenses—in
Washington Park; whether subsequent ordinances abro-
gated prior ordinances; the total amount of licensing fee
arrearages allegedly owed by Joelner and the basis for that
number; which license applications were and were not on
the April 15 agenda; why applications were considered in a
particular order by the Board on April 15; and the justifica-
tion(s) for the denial of Joelner’s applications, other than
the alleged arrearages. Moreover, the question of standing
remains, see supra note 4. All of these issues may be more
fully explored when the district court, upon remand, takes
up Joelner’s request for a permanent injunction and
declaratory relief.
  Because a definitive determination on the merits is not
now possible, we will consider the relative strength of
Joelner’s constitutional claims based on the skimpy appel-
No. 03-2669                                                  11

late record and then balance the possible negative impacts
of the grant or denial of a preliminary injunction on (1)
Joelner’s business(es), (2) the Village, and (3) the aforemen-
tioned two-fold public interest.


A. Reasonable Likelihood of Success on the Merits
  Here we must decide, in the context of a preliminary in-
junction, whether a municipality can constitutionally limit
the number of adult entertainment venues and impose
annual licensing fees for such businesses. Specifically, Joelner
posits that both the numerical restriction and licensing fees
are facially unconstitutional, and that the numerical
restriction was unconstitutionally applied. With respect to
the facial challenges, it is an uphill battle because, absent
overbreadth and/or vagueness challenges, he can only pre-
vail if he demonstrates “ ‘that no set of circumstances exist
under which the [regulation] would be valid.’ ” Ben’s 

n.11 (quoting United States v. Salerno, 

, 745 (1987) (brackets in original) and citing Horton
v. City of St. Augustine, 

, 1331 (11th Cir.
2001)). See also Thomas v. Chicago Park Dist., 

, 923 (7th Cir. 2000), aff’d on other grounds, 

(2002). We recently conducted an exhaustive review of
First Amendment Supreme Court jurisprudence in Ben’s
Bar, Inc. v. Village of Somerset, 

, 708-722 (7th
Cir. 2003), and need not repeat that analysis here.


  1. The Numerical Restriction
    a. Facial Challenge
   The primary thrust of Joelner’s facial challenge to the
numerical restriction is his assertion that because the
ordinance applies only to “adult entertainment” outlets, it
is a content-based restriction of erotic expression, subject to
strict scrutiny, and cannot pass constitutional muster. But
12                                               No. 03-2669

“content-neutrality” is a concept easily and oft confused. Cf.
City of Los Angeles v. Alameda Books, Inc., 

(2002) (Kennedy, J. concurring) (discussing the difficulties
of the “content-neutrality” inquiry); Schultz v. City of
Cumberland, 

, 845 (7th Cir. 2000) (“[T]he fact
that the Ordinance definition is content-based on its face
does not necessarily dictate that the Ordinance is analyzed
as content-based and subject to strict scrutiny.”).
  Ordinance 01-27 is clearly directed only at “adult enter-
tainment.” Regulations which directly circumscribe a cer-
tain category of speech are subject to strict scrutiny and are
likely to be constitutionally impermissible. See, e.g., R.A.V.
v. City of St. Paul, 

, 382 (1992); 

; Stromberg v. California, 

, 368-69
(1931). But the First Amendment tolerates governmental
interference with general categories of expressive conduct,
as opposed to actual speech. 

. Very
generally, whether conduct regulations will be subject to
intermediate or strict scrutiny most often actually hinges
upon the regulation’s intended purpose, rather than some
strained interpretation of content-neutrality. See Ben’s 

; 

(“[C]ourts often
called [regulations] content-neutral without explaining that
[they] are in fact content-based and only analyzed as
content-neutral when certain preconditions are met.”).
  There are two distinct, yet overlapping, lines of Supreme
Court jurisprudence addressing the degree of First
Amendment protection afforded to adult entertainment, a
particular type of expressive conduct. Ben’s 

. One group of cases addresses public indecency
regulations. See Barnes v. Glen Theatre, Inc., 

(1991); City of Erie v. Pap’s A.M., 

(2000). The
other considers adult entertainment zoning ordinances. See
Young v. Am. Mini Theatres, Inc., 

(1976) (“AMT”);
City of Renton v. Playtime Theatres, Inc., 

(1986); City of Los Angeles v. Alameda Books, Inc., 535 U.S.
No. 03-2669                                               13

425 (2002). However, the analytical framework under-
pinning both strains of jurisprudence is rooted in United
States v. O’Brien, 

, 376-82 (1968). Ben’s 

. Consequently, the Supreme Court has held
that the distinctions between the test used to assess the
constitutionality of public indecency statutes, see Pap’s

, and that used to evaluate adult en-
tertainment zoning ordinances, see 

-
47, are 

.
  Ordinance 01-27 cannot neatly be categorized as either an
indecency regulation or zoning ordinance, similar to the
statute at issue in Ben’s 

. Thus, we
will analyze Ordinance 01-27 just as we analyzed the Ben’s
Bar statute—by using the “road map” provided in 44
Liquormart, Inc. v. Rhode Island, 

. A restriction placed upon the number of adult
entertainment outlets is constitutional if:
    (1) the State is regulating pursuant to a legitimate
    governmental power; (2) the regulation does not com-
    pletely prohibit adult entertainment; (3) the regulation
    is aimed not at the suppression of expression, but rather
    at combating the negative secondary effects caused by
    adult entertainment establishments; and (4) the regu-
    lation is designed to serve a substantial government
    interest, [is] narrowly tailored, and reasonable alter-
    native avenues of communication remain available . . . .

(citations omitted). Step four encapsulates the
intermediate standard of scrutiny applicable in First
Amendment challenges to adult entertainment regulations.
See, e.g., 

; 

.
However, if a regulation fails to satisfy either steps two or
three, strict scrutiny applies and, in order to be constitu-
tional, the statute must be “necessary to serve a compelling
state interest and be narrowly drawn to achieve that end.”
14                                               No. 03-2669

(citing Simon & Schuster, Inc. v.
Members of the N.Y. State Crime Victims Bd., 

(1991)).
  First, Ordinance 01-27 is an exercise of the Village’s
general police power because it is purportedly justified as
an effort to protect the public’s health, welfare, and safety.
See, e.g., Ben’s 

. Therefore, the
Village is regulating pursuant to a legitimate government
power and prong one is met.
  Second, Ordinance 01-27 is plainly not a complete
prohibition of adult entertainment. It explicitly allows six
venues for such expression. Because no additional adult
cabarets or bookstores can be licensed after the maximum
number of licenses are issued, Joelner asserts that the
Ordinance therefore operates as a “complete ban.” See, e.g.,
Alameda 

(mentioning that the Ninth
Circuit had rejected a similar argument advanced below by
the adult bookstore/arcade owner, but not reaching the is-
sue). We find this characterization unpersuasive. Because
adult entertainment venues are not prohibited entirely in
Washington Park, it is more appropriate to view the ordi-
nance as a limitation, rather than a ban. Joelner is unable
to point us to any case which says otherwise. Thus, as
Ordinance 01-27 does not eliminate erotic expression in
Washington Park, prong two is met.
  The third prong of the analysis, which considers whether
the regulation is aimed at reducing the negative effects of
adult speech and not the suppression of speech, when
coupled with the second, concerns the level of scrutiny that
must be applied to Ordinance 01-27. Ben’s 

. In Ben’s Bar, although we concluded that the statute
was “content-based,” we nonetheless applied intermediate
scrutiny. 

The focus was solely upon the municipal-
ity’s purpose in enacting the statute.
 If an ordinance was enacted to restrict certain viewpoints or
modes of expression, see 

, it is
No. 03-2669                                                      15

subject to strict scrutiny and is presumptively invalid. But
if an ordinance is a “time, place, and manner” restriction,
enacted “predominant[ly]” to address the negative second-
ary effects caused by such expression and not to suppress
the content of erotic speech, it is subject to intermediate
scrutiny.6 

  The “content-neutrality” inquiry is therefore subsumed by
the inquiry into a municipality’s purpose in enacting the
regulation. 

(citing Alameda 

(plurality opinion); 

(Kennedy,
J. concurring); Pap’s 

-96 (plurality
opinion); and 

(Souter, J., concurring in part and
dissenting in part)). In evaluating a municipality’s underly-
ing regulatory motivations, we may consider a “ ‘wide
variety of materials including, but not limited to, the text of
the regulation or ordinance, any preamble or express
legislative findings associated with it, and studies and
information of which legislators were clearly aware.’ 

n.28 (quoting Ranch House, Inc. v. Amerson, 

, 1280 (11th Cir. 2001)). And while a municipality
need not conduct new studies or produce evidence independ-



6
   “[An ordinance restricting factories to areas far from residential
neighborhoods] might, like a speech restriction, be ‘content based.’
It might, for example, single out slaughterhouses for specific
zoning treatment . . . . Without knowing more, however, one would
hardly presume that because the ordinance is specific to that
business, the city seeks to discriminate against it . . . . One would
presume, rather, that the ordinance targets not the business but
its particular noxious side effects. The business might well be the
city’s most valued enterprise; nevertheless, because of the [negative
side effects] it causes, it may warrant special zoning treatment.
This sort of singling out is not impermissible content discrimina-
tion; it is sensible urban planning.” Alameda 

(emphasis added) (citation omitted).
16                                                  No. 03-2669

ent of that already generated by other cities, 

(citing 

), there still must be some
reasonably relevant evidentiary basis for a municipality’s
action.7
  In the instant case, Ordinance 01-27 limits the number of
“places” providing adult entertainment at any one “time” to
six, but includes no guidelines to restrict the mode by which
erotic messages are conveyed. See, e.g., 

(holding unconstitutional a statute which “restrict[ed]
the particular movements and gestures of the erotic dancer”
and thereby “depriv[ed] the performer of a repertoire of
expressive elements with which to craft an erotic, sensual
performance.”) Hence, Ordinance 01-27 is a type of time,
place, and manner restriction.
   The preamble to Ordinance 01-27 states that it was enacted
“[i]n order to promote the public interest in the preservation
of public health, safety and welfare . . . .” In addition, the
ordinances which were adopted prior to No. 01-27, Nos. 069-
99 and 01-22, both cite “public health, safety, and welfare”




7
   In Ben’s Bar, we discussed the slight variations between the
views of Justice Kennedy and the plurality in Alameda Books re-
garding the correct evidentiary burden which must be met by a
municipality in the third prong of the 

-
22. As Justice Kennedy’s concurrence is the narrowest opinion
joining the judgment of the Court in Alameda Books, it controls.
Marks v. United States, 

, 193 (1977). Hence, although
“very little evidence is required,” Alameda 

(Kennedy, J. concurring), the municipality’s inference that the
ordinance “may reduce the costs of secondary effects without
substantially reducing speech,” 

must appear reason-
able. Given the particular nature of this appeal, the distinction
here is inconsequential, but we note that it may not be upon
remand for a full adjudication.
No. 03-2669                                                    17

as the basis for the restriction.8 But it is not enough for the
Village to indicate that the secondary effects of adult
entertainment were one concern underlying its enactment
of Ordinance 01-27, such effects must be the “predominant
concerns.” Ben’s 

.
  The record does not contain any legislative findings or
any indication that the Board considered studies or other
information before enacting Ordinance 01-27, or its precursor
ordinances. Without this information, we cannot now de-
termine if intermediate scrutiny applies. But we also note
that when the matter is fully considered upon remand, if
the Village is unable to point to any legislative findings,
other than the preamble noted above, or some outside infor-
mation upon which the Board relied, the evidence indicates
that the Village’s decision to increase the limitation from
four to six seemed to be motivated predominantly by concerns
about revenue and/or political patronage, not secondary
effects and hence, strict scrutiny would apply. And if so, the
Ordinance would likely be unconstitutional because the
Village’s general statements about public welfare would be
insufficient to demonstrate that the ordinance was neces-
sary to serve a compelling state interest and narrowly
drawn to that end.
  Moreover, even if the Village can point to other legislative
findings or outside information relied upon by the Board,
such that Ordinance 01-27 is subject to the less demanding
intermediate level of scrutiny, the Village still must satisfy
the fourth prong of the analysis—the regulation must serve
a substantial governmental interest, be narrowly tailored,



8
  Although the Village nowhere expressly references secondary
effects, for the sake of argument, we presume that its interest in
the “public health, safety, and welfare” is spurred by a concern
over the negative effects which may accompany adult entertain-
ment businesses.
18                                                   No. 03-2669

and cannot unreasonably limit alternative avenues of
communication. 

And since a municipality “ ‘may
not assert that it will reduce secondary effects by reducing
speech in the same proportion,’ ” 

(quoting
Alameda 

(Kennedy, J. concur-
ring)), it is doubtful whether Washington Park will be able
to meet this final prong of the analysis, absent some
showing that there was no other regulatory means available
(aside from the numerical restriction) which would have
effectively curbed any deleterious secondary effects of adult
entertainment outlets.
  In sum, we agree with the district court that based on the
limited appellate record, Joelner has a strong likelihood of
success on the merits of his permanent injunction and
declaratory judgment action as to the facial constitutional-
ity of the numerical restriction. However, our inquiry
cannot end here as we must proceed to the balancing of the
harms, see infra Part II.B., after a brief review of Joelner’s
other constitutional challenges.9


     b. As Applied
   Joelner argues that the Village’s application of the nu-
merical restriction was unfounded, arbitrary, and capricious
and thus, unconstitutional. As a preliminary matter, we
point out that the Board based its rejections of his licenses,
at least in part, upon his alleged failure to pay applicable
licensing fees. This can hardly be considered an “arbitrary


9
  Joelner also asserts that the ordinance is unconstitutional on its
face because it provides no guidelines for the allocation of the
limited number of licenses allowed. See, e.g., City of Lakewood v.
Plain Dealer Publ’g Co., 

, 757-58 (1988), cited in

n.6. However, we do not address this
issue here because we are fairly convinced that the numerical
restriction is otherwise constitutionally flawed.
No. 03-2669                                                  19

and capricious” reason for denying Joelner the requested
licenses. However, because the record does not reveal what
the Board based these allegations upon, how the license
applications came to be ordered as they were on the April
15 agenda, or how an application not on the April 15
agenda was considered at all, and particularly how it was
considered before Joelner’s, we refrain from making any
determination with respect to this assertion and leave the
issue for a more full examination upon remand.


  2. Facial Challenge to the Licensing Fees
  The main focus of Joelner’s facial challenge to the licensing
fees is his argument that Ordinance 01-22 is content-based
and therefore unconstitutional. But a statute imposing licens-
ing fees is not “content-based” simply because it is directed at
a certain category of activities, such as regulations of parades,
rallies, assemblies, and other demonstrations held on city
streets or city property. 

;
Alameda 

. See, e.g., Church of the
Am. Knights of the Klu Klux Klan v. City of Gary, 

, 680-81 (7th Cir. 2003) (“KKK”) (treating regulation
affecting only parade and demonstration activities as “con-
tent-neutral”); Forsyth County v. Nationality Movement, 

, 130-132 (1992) (same). Rather, an inquiry into the
constitutionality of a fee ordinance is two-fold: (1) does the
regulation in question vest the public officials in charge of
enforcing or applying the ordinance with a constitutionally
impermissible amount of discretion, see, e.g., 

; and (2) is the fee amount based upon the
costs of administering the ordinance, maintaining public
order, and relieving the other burdens on public services
stemming from the matter licensed, see Cox v. New Hamp-
shire, 

, 576-77 (1941); Murdock v. Pennsylva-
nia, 

, 116 (1943); 

(cita-
tions omitted); 

; 

.
20                                               No. 03-2669

  Turning to the first issue, Washington Park vests its
public officials with no discretion at all regarding the ap-
plication of the licensing fee. Every “adult entertainment”
venue or proposed venue is subject to Ordinance 01-22, and
the license applicant himself, rather than public officials,
determines which fee will apply, either by applying for a
“bookstore” or a “cabaret” license. 

. This ordinance does not create the “unbridled discre-
tion” the Supreme Court condemned in 

.
  And as to the second issue, we cannot now make any
determination regarding the underlying basis for the amount
of the fee. Permit or license fees which restrict constitution-
ally protected speech must bear a rational relationship to
the public services involved with the matter licensed. S.-
Suburban Housing Ctr. v. Greater S. Suburban Bd. of
Realtors, 

, 898 (7th Cir. 1991). The Village
generally indicated the basis for the fees in section 1 of
Ordinance 01-22:
     [I]t is in the best interests of the health, safety, and
     welfare of its citizens to increase the license fees for
     adult entertainment establishments operating within
     the corporate limits of the Village. After careful con-
     sideration of the size of the Village and the number of
     businesses, the expenses involved in maintaining law
     and order, the vehicular and pedestrian traffic in the
     Village, the income and number of problems and diffi-
     culties that arise from the aforesaid businesses, and the
     desire to provide a safer, cleaner, and more aestheti-
     cally pleasing Village for its residents, the Board has
     determined that license fee rates should be increased.
Standing alone these are valid reasons for the imposition of
a fee. But the $10,000 and $30,000 fees imposed by Wash-
ington Park are certainly not nominal. See Forsyth, 

(dissenting opinion) (discussing whether the
No. 03-2669                                                21

Constitution limits a license fee to a nominal amount).
Furthermore, the Village chose to differentiate between
“cabarets” and “bookstores.” Without more, the statement
of purpose included in the statute is insufficient to support
the fees, particularly considering the differentiation be-
tween establishments and the large cabaret fee. However,
the record has not been sufficiently developed for a reliable
assessment to be made as to this issue, and thus, the Village
will have the opportunity on remand to more adequately dem-
onstrate its justification for these fees. S.-Suburban Housing

(stating the burden is on the municipal-
ity to make this “rational relationship” showing).


B. Balancing of the Harms to the Parties and the
   Public Interest
  Our discussion of Joelner’s likelihood of success on the
merits generally supports a preliminary injunction to pre-
vent the Village from enforcing the ordinances. Yet our
conclusions do not necessitate that outcome. As noted earlier,
see supra Part II, because this case involves adult enter-
tainment regulations, which implicate conflicting public
interests, and because lingering factual questions make a
definitive resolution on the merits impossible, the relative
harms to the interested parties stemming from a grant or
denial of a preliminary injunction must be weighed against
the merits. Although we are fairly convinced that there are
serious constitutional problems with both the numerical
restriction and, to a lesser extent, the licensing fees, a
preliminary injunction may nonetheless be inappropriate if
the relative harms strongly disfavor such relief. See, e.g.,

(vacating a preliminary
injunction where the relative harms mediated against it).
22                                              No. 03-2669

  1. The $30,000 Cabaret Fee and the Numerical
     Restriction
  Regarding the $30,000 fee portion of the ordinance and
the numerical restriction, if an injunction were refused,
there would be no direct harm to Joelner because he does
not have any currently operating licensed cabaret businesses.
We also note again our concern about whether Joelner
actually owns the relevant properties, see supra note 4.
Generously, we do acknowledge that Joelner would suffer
some opportunity costs if an injunction were refused and
these ordinances were later found unconstitutional. But
such opportunity costs are too speculative for us to consider
here. For example, if we were to enjoin the enforcement of
these ordinances, who is to say that Joelner’s proposed
business would find adequate staff or operate at a profit?
  However, if the Village was forced to hold new hearings
on Joelner’s applications, the Village would incur costs,
admittedly nominal. And if the Village was compelled to
grant Joelner the licenses he requested, as he urges us to
do, the Village would bear the not insignificant increase in
police, infrastructural, and other related costs.
  Moreover, if the injunction were refused with respect to
the $30,000 fee and numerical restriction, Washington Park
would still have six currently licensed and operating adult
entertainment outlets, including Joelner’s bookstore at 2226
Kingshighway. Put differently, there would be no shortage
of forums for this type of communication. And as mentioned
previously, the opening of each additional outlet may be
accompanied by deleterious secondary effects (e.g., in-
creased crime rates, diminished property values, deteriora-
tion of neighborhoods, see, e.g., 

-47).
  In sum, given that there is an abundance of adult enter-
tainment venues in Washington Park, that Joelner does not
currently operate any cabaret, and that the Village and the
public would bear both direct and indirect costs if even one
No. 03-2669                                                 23

additional outlet were opened, despite the constitutional
hurdles that must be overcome by each ordinance, a
preliminary injunction requiring either new hearings or the
issuance of any new licenses to Joelner is on balance
disfavored. The district court’s order, to the extent it
required the Village to conduct a new hearing for Joelner,
must be vacated.


  2. The $10,000 Bookstore Fee
   With respect to the $10,000 portion of the fee ordinance,
if an injunction were refused and Joelner were forced to pay
the fee in order to continue to operate his bookstore, Joelner
could suffer significant irreparable harm. It is true that,
assuming Joelner ultimately succeeds in establishing the
invalidity of the fee provisions, his injury could be compen-
sated through an award of money damages. 

n.4. However, $10,000 is a relatively onerous
amount to pay to continue operate a business previously
licensed for only $100 annually. Second and relatedly, if
Joelner cannot afford such a hefty fee, he would be forced to
shut down his bookstore. Hence, there is a threat that these
allegedly unconstitutionally excessive fees could cause Joelner
significant irreparable harm. See 

n.8.
  In contrast, if the injunction is granted, allowing Joelner
to continue to operate his bookstore without paying the
$10,000 fee, the possible harm to the Village is minimal.
The Village would be deprived of $10,000—and only tem-
porarily, assuming, arguendo, the fee is later found to be
constitutional. Even for a small municipality like Washington
Park, the harm from such a temporary deprivation of capital
cannot outweigh the possible harm to Joelner. Also, Wash-
ington Park licensed Joelner’s bookstore for only $100
annually from at least 1995 until January 2003, despite the
fact that Ordinance 069-99 (enacted September 1999) and
Ordinance 01-00 (enacted January 2000) authorized the
24                                                   No. 03-2669

Village to impose fees of $3000 and $30,000, respectively.10
If the Village managed to get along without Joelner’s fees
for the approximately eight years prior to 2003, surely the
Village can survive without these fees for a few more
months, while the merits are fully adjudicated. And, as
noted earlier, there would be no harm at all to the Village
if the fee is later found to be unconstitutional. Cf. Connec-
tion Distrib. 

(“[T]he government presum-
ably would be substantially harmed if enforcement of a
constitutional law . . . were enjoined[.]”).
   Regarding the alleged arrearages owed by Joelner, the
record does not reveal the Board’s basis for these conten-
tions, other than statements by the Village Clerk that Joelner
was “in the red.” But presumably, although there is no doc-
umentation of any objection by the Village to Joelner’s pay-
ment of only a nominal $100 annual fee prior to January
2003, the Board seeks to hold Joelner responsible for the
adult entertainment fees which ostensibly first became
applicable in 1999. Given that Joelner’s arrearages could
possibly total around $56,00011 and that the Village had
made no objection to his “nonpayment” until January 2003,
our above analysis with respect to the “new” $10,000 fee
likewise applies to the alleged arrearages.
  Furthermore, the bookstore is a forum for adult speech
known and presumably relied upon by the public. Because


10
  We make no explicit or implicit determination regarding the
constitutionality of either of these ordinances. The only ordinances
challenged in this suit are Nos. 01-22 and 01-27.
11
   Ordinance 069-99, imposing a $3000 annual (or $250/month)
adult entertainment license fee, was enacted in September 1999.
Ordinance 01-00, imposing a $30,000 annual (or $2500/month)
license fee, was enacted in January 2000. Ordinance 01-22, im-
posing a $10,000 annual adult bookstore fee, was enacted in
November 2002. Thus, Joelner’s “back-fees” would equal approxi-
mately $1000 for September-December 1999 and $55,000 for
January 2000-October 2002, for a total of $56,000.
No. 03-2669                                                  25

the Village has licensed this business since at least 1995,
the Village had, without question, previously determined
that the secondary effects of this business were acceptable.
Therefore, consideration of the relative harms weighs in
favor of granting a preliminary injunction to prevent the
Village from collecting the alleged arrearages and enforcing
the $10,000 fee provision with respect to Joelner’s existing
bookstore business. To the extent that the district court’s
order required payment of these fees to the Village, it
should be vacated.


                      III. Conclusion
  The district court’s denial of all injunctive relief requested
by Joelner save its order preventing the Village of Washing-
ton Park from interfering with the continued operation of
Joelner’s bookstore located at 2226 Kingshighway was correct
and appropriate. But it was error for the district court to
require Joelner to pay either the disputed arrearages or the
November 2002 fee in order to run this business. In addi-
tion, with respect to Joelner’s request for new hearings the
district court also erred—the Village need not hold any
rehearings on any of Joelner’s applications, nor grant any
new licenses to Joelner.
  Therefore, although it appears that the numerical
restriction on its face (and possibly as applied to Joelner) is
unconstitutional and that the fee requirement on its face
may be unconstitutional, after weighing the merits against
the interests of Joelner, the Village, and the public, the
request to preliminarily enjoin Washington Park from en-
forcing these ordinances was properly denied, but Joelner
should be allowed to continue to operate his bookstore without
the payment of any disputed fees pending final disposition
of the case. The district court’s order is AFFIRMED in part
and VACATED in part. The case is REMANDED for further
proceedings.
26                                              No. 03-2669

                       APPENDIX
Ordinance 069-99: Ordinance Limiting the Number of Adult
Entertainment Licenses in the Village of Washington Park,
St. Clair County, Illinois to the Number of (4) Four.
  Be it ordained by the President and Board of Trustees of
the Village of Washington Park, Illinois, that there has
been and shall be a limitation of the number of adult en-
tertainment licenses to the maximum limit of (4) four as
follows:


Section 1. Limitation and Purpose.
   In order to promote a public interest in the preservation
of public health, safety and welfare, and to accord with the
historical fact that adult entertainment licenses are and
were limited to the number of (4) four, there is and shall be
a limitation on the number of adult entertainment licenses
and establishments limiting the number of such licenses
and establishments to a maximum of (4) four in the Village
of Washington Park. This maximum limitation is a reaffir-
mation of this Village’s limitation. The maximum limitation
shall apply retrospectively and prospectively. In the event
of the cessation of business of any licensed adult entertain-
ment license, the adult entertainment license conferred to
the persons or corporation for that establishment shall
immediately lapse and no future adult entertainment
license shall be issued by any elected or appointed public
official, representative, employee, or body of the Village of
Washington Park to operate an adult entertainment
establishment on the geographic location of a prior existing
establishment or any other location within the Village
limits of Washington Park, Illinois. Thereupon, the maxi-
mum number of adult entertainment licenses shall be
immediately lowered to the number of adult entertainment
licenses remaining in effect.
No. 03-2669                                                 27

Section 2. License Requirement for Adult Entertainment.
  All persons or corporations involved in the operation of a
commercial use featuring [adult entertainment] shall be
required to have an adult entertainment license the fee for
which is set at $3000.00 and is limited by the number of
allowed establishments as set forth herein.


Section 3. Definition of Adult Entertainment.
  Adult entertainment is the operation of a commercial use
featuring acts, performances, videos, and/or movies involv-
ing nudity, or partial nudity, but within the permitted
community standards of the Village of Washington Park,
the County of St. Clair and the State of Illinois, available to
persons over the age of (21) twenty-one years.


Section 4. Transfers Prohibited.
  No entertainment licenses issued by the Village of
Washington Park shall be transferable by any means whatso-
ever, and such authority as an entertainment license confers
shall be conferred ONLY to the persons or corporation name
thereon.


Section 5. Authorized Time of Operation.
  In order to promote the health, safety, and welfare of
the citizens of Washington Park, Illinois, all adult enter-
tainment licensed establishments are only authorized to
conduct adult entertainment on the premises specified, be-
tween the time of 6:00 a.m. central time and 12:00 a.m.
central time on Sunday through Thursday; and, on Friday
through Saturday between 6:00 a.m. central time and 1:00
a.m. central time. Failure to comply with the authorized
time of operation shall subject the licensee to immediate re-
28                                                No. 03-2669

vocation of the adult entertainment license by the Village
Board. Upon revoking said license, the Village Board shall
state the reason(s) in writing to the holder of the revoked
license.


Section 6. Saving Clause.
  Should any court of competent jurisdiction make a judicial
determination that any section, paragraph, provision or
sentence of this ordinance is unconstitutional, the validity
of the remaining sections, paragraphs, provisions or
sentences shall not be affected and shall remain in full force
and effect.


Ordinance 01-00: Ordinance Amending the Fee for Adult
Entertainment License.
  Whereas, the president and board of Trustees of the
Village of Washington Park, Illinois believe that the public
health, safety and welfare of the residents of the Village
and those persons who enter the territorial jurisdiction of
the Village would be served by an increase in the annual fee
for an adult entertainment license within the Village; and,
  Whereas, the cost, including police, fire, and other municipal
resources to the Village has steadily increased because of the
location of said adult entertainment establishments within the
Village;
  Be it ordained by the president and board of trustees of
the Village of Washington Park, Illinois, that the fee for
maintaining an adult entertainment license within the
Village shall be increased to $30,000.00 [ ] annually.


Ordinance 01-22: Amending the License Fees and Other
Regulations Regarding Adult Entertainment Licensing.
No. 03-2669                                                 29

  Be it ordained by the Village of Washington Park as
follows:
Section 1. Purpose.
   The Village Board has determined that it is in the best
interests of the health, safety, and welfare of its citizens to
increase the license fees for adult entertainment establish-
ments operating within the corporate limits of the Village.
After careful consideration of the size of the Village and the
number of businesses, the expenses involved in maintaining
law and order, the vehicular and pedestrian traffic in the
Village, the income and number of problems and difficulties
that arise from the aforesaid businesses, and the desire to
provide a safer, cleaner, and more aesthetically pleasing
Village for its residents, the Board has determined that
license fee rates should be increased.


Section 2. Body of Evidence.
  The license fees for engaging in adult entertainment
establishments within the Village shall be as provided in
the following schedule:

        Business           Fee/Year         Fee/Year
                             2002             2003

   Adult Bookstore       $10,000          $10,000

   Adult Cabaret         $30,000          $30,000


Section 3.
 The following definitions apply to all Village of
Washington Park regulations.
30                                              No. 03-2669

     Business                   Definition

     Adult       Any business which sells what is com-
     Bookstore   monly known as adult entertainment
                 books, magazines, other reading materi-
                 als, movies, novelties, or paraphernalia.

     Adult       Any business with adult entertainment
     Cabaret     which includes live persons performing
                 adult entertainment and which includes
                 nudity.


Section 4.
  The fees contained in Section 2 are annual fees. The bus-
inesses may pay the fees on a quarterly basis . . . .


Section 5. Limitation and Purpose.
   In order to promote a public interest in the preservation
of public health, safety and welfare, and to accord with the
historical fact that adult entertainment licenses are and
were limited to the number of (4) four, there is and shall be
a limitation on the number of adult entertainment licenses
and establishments limiting the number of such licenses
and establishments to a maximum of (4) four in the Village
of Washington Park. This maximum limitation is a reaffir-
mation of this Village’s limitation. The maximum limitation
shall apply retrospectively and prospectively. In the event
of the cessation of business of any licensed adult entertain-
ment license, the adult entertainment license conferred to
the persons or corporation for that establishment shall
immediately lapse and no future adult entertainment
license shall be issued by any elected or appointed public
official, representative, employee, or body of the Village of
Washington Park to operate an adult entertainment
No. 03-2669                                                31

establishment on the geographic location of a prior existing
establishment or any other location within the Village
limits of Washington Park, Illinois. Thereupon, the maxi-
mum number of adult entertainment licenses shall be
immediately lowered to the number of adult entertainment
licenses remaining in effect.


Section 6. Transfers Prohibited.
  No entertainment licenses issued by the Village of
Washington Park shall be transferable by any means what-
soever, and such authority as an entertainment license con-
fers shall be conferred ONLY to the persons or corporation
name thereon.


Section 7. Authorized Time of Operation.
  In order to promote the health, safety, and welfare of the
citizens of Washington Park, Illinois, all adult entertain-
ment licensed establishments are only authorized to conduct
adult entertainment on the premises specified, between the
time of 6:00 a.m. central time and 12:00 a.m. central time
on Sunday through Thursday; and, on Friday through
Saturday between 6:00 a.m. central time and 1:00 a.m.
central time. Failure to comply with the authorized time of
operation shall subject the licensee to immediate revocation
of the adult entertainment license by the Village Board.
Upon revoking said license, the Village Board shall state
the reason(s) in writing to the holder of the revoked license.


Section 8. Saving Clause.
  Should any court of competent jurisdiction make a judicial
determination that any section, paragraph, provision or
sentence of this ordinance is unconstitutional, the validity
32                                              No. 03-2669

of the remaining sections, paragraphs, provisions or sen-
tences shall not be affected and shall remain in full force
and effect.


Ordinance 01-27: Amending the Village of Washington
Park, Illinois Ordinance No. 01-22, Section 5.
  Be it ordained by the Village Board of Trustees of the
Village of Washington Park, Illinois in regular meeting
assumed as follows:
Section 5. Limitation and Purpose.
  In order to promote the public interest in the preservation
of public health, safety and welfare, there is and shall be a
limitation on the number of adult entertainment licenses
and establishments to a maximum of (6) six in the Village
of Washington Park. This maximum limitation shall apply
prospectively. In the event of cessation of business of any
adult entertainment establishment, the adult entertain-
ment license conferred to the persons or corporation for that
establishment shall immediately lapse and no future adult
entertainment license shall be issued by any elected or
appointed public official, representative, employee, or body
of the Village of Washington Park to operate an adult
entertainment establishment on the geographic location of
a prior existing establishment or any other location within
the Village limits of Washington Park, Illinois. Thereupon,
the maximum number of adult entertainment licenses shall
be immediately lowered to the number of adult entertain-
ment licenses remaining in effect.
No. 03-2669                                        33

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—8-4-04