01-2334 O'Grady v. Village of Libertyville

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“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 offenders 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 licensing 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 certification 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 punishment 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 problem absent retrospective application of the Ordinance to the pre-Ordinance activities.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Wood, J.