265 F. Supp. 3d 873
S.D. Ind.2017Background
- HH-Indianapolis (HH) leased premises in a C-3 district to open a retail store selling lingerie, gag-gifts, greeting cards, some written materials and a limited amount of adult products; HH structured its business model to try to avoid adult-business classification.
- Indianapolis DBNS reviewed HH’s permit submissions (initial and later), found them vague/contradictory, and determined the proposed store would qualify as an adult entertainment business (either an adult bookstore or an adult service establishment) under the local ordinance.
- HH appealed to the Marion County Board of Zoning Appeals (BZA); the BZA heard evidence (including about other HH-Entertainment stores and community opposition) and unanimously affirmed DBNS’s determination. HH did not seek state-court review and instead filed a § 1983 suit asserting First Amendment, Equal Protection, and state administrative-law claims and moved for a preliminary injunction.
- The Ordinance labels establishments as "adult bookstore" if 25%+ of space, inventory, or weekly revenue involve adult products; an "adult service establishment" is defined by providing a preponderance of two or more listed services involving specified sexual activities or anatomical areas.
- The Premises is in a C-3 zone where adult businesses are disallowed as of right (they can operate as of right in C-4/C-5/C-7); DBNS noted the Premises is within 500 feet of a dwelling district, triggering additional restrictions.
- The district court denied HH’s motion for a preliminary injunction, finding HH had no better-than-negligible chance of success on its constitutional claims and no irreparable injury on its state-law claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| As-applied First Amendment challenge (classification as adult business) | HH: City misapplied the ordinance; classification was erroneous and motivated by viewpoint/censorial intent, chilling speech | City: Classification is a zoning time/place/manner restriction aimed at secondary effects; nearby alternative zones exist; evidence supported classification | Court: HH’s claim is essentially a state-law disagreement; relocation alternative makes First Amendment injury slight; no better-than-negligible likelihood of success |
| Facial vagueness of “preponderance” in "adult service establishment" | HH: term "preponderance" is vague and chills speech | City: "Preponderance" conveys majority/superiority; gives fair notice | Court: Term is sufficiently definite for ordinary person; vagueness challenge unlikely to succeed |
| Facial overbreadth of "adult service establishment" definition | HH: definition could sweep in many lawful speakers (artists, breastfeeding advocates, bakers, newspapers) | City: definition requires a combination of two or more covered activities and a preponderance of such services, narrowing scope | Court: Ordinance requires two or more covered activities plus preponderance, so overbreadth claim fails |
| Equal Protection (class-of-one) | HH: treated differently from other general-merchandise retailers; discrimination caused injury | City: Comparators are not similarly situated (different zoning); alleged error in classification is not constitutional arbitrariness | Court: HH cannot show similarly situated comparators or irrational treatment; claim unlikely to succeed |
| State administrative law (arbitrary/capricious; lack of substantial evidence) | HH: BZA/DBNS decision unsupported by substantial evidence and arbitrary | City: Decision rested on submissions, evidence, and credibility determinations; judicial review available | Held: Even if administrative error, HH failed to show irreparable harm compensable only by injunction; no injunction granted |
Key Cases Cited
- Girl Scouts of Manitou Council, Inc. v. Girls Scouts of the U.S.A., Inc., 549 F.3d 1079 (7th Cir. 2008) (preliminary-injunction standard and sliding-scale balancing)
- Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) (First Amendment irreparable-harm presumption and injunctions as public-interest-protecting)
- Joelner v. Village of Washington Park, 378 F.3d 613 (7th Cir. 2004) (likelihood of success often dispositive in First Amendment preliminary-injunction analysis)
- New Albany DVD, LLC v. City of New Albany, 581 F.3d 556 (7th Cir. 2009) (adult-material vending is protected expression absent obscenity)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (time/place/manner regulation of adult businesses to address secondary effects)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality/concurring guidance on zoning and secondary-effects analysis)
- City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (standardless discretion in licensing is a prior restraint concern)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (procedural safeguards and prompt judicial review required where licensing could operate as prior restraint)