Posted by: Patricia Salkin | October 3, 2017

Fed. Dist. Court in IN Denies Preliminary Injunction for an Adult Entertainment Business

HH–Indianapolis (“HH”) intended to open a retail store at a location it had leased for a ten-year period. The Indianapolis Department of Business and Neighborhood Services (DBNS) determined that, based on the store’s inventory and intentions, the store would qualify as an adult entertainment business. Under the local zoning ordinance, the premises was not zoned for an “adult entertainment business.” HH appealed that determination to the Marion County Board of Zoning Appeals (BZA), which affirmed the DBNS. HH then brought this Section 1983 action against Indianapolis, the BZA, and the DBNS for violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and state administrative law, and additionally sought a preliminary injunction enjoining enforcement of the Ordinance.

As to its First Amendment claims, HH proposed to sell “instructional DVDs and literature,” “greeting cards,” “joke books,” “bumper stickers,” and material relating to “the emerging bondage-domination-sadomasochism political and cultural movement.” Specifically, the fulcrum of HH’s claim was that the City erroneously determined the store to be an adult entertainment business, motivated by its disapproval of HH’s speech and intending to suppress it. As such, the court found that HH’s “as applied” claim might be better considered of as a chilling claim; however, even so, a chilling claim could not furnish grounds for the injunction sought here in the absence of any evidence or argument that being changed from a C–3 district to a C–4, C–5, or C–7 district was “adverse conduct” or a “deprivation” that would “deter a person of ordinary firmness from exercising” First Amendment rights. Moreover, the court found that the City was not required to believe HH when it assured the City that it did not intend to operate an adult entertainment business.

HH next argued the Ordinance’s definition of “adult service establishment” was unconstitutionally vague. The court found that the Ordinance gave fair notice to a person of ordinary intelligence that an adult services establishment offers more services involving specified sexual activities and specified anatomical areas than services not defined. HH also contended the Ordinance’s definition of “adult services establishment” was overbroad. This argument was rejected as it required as this definition entailed a “combination of two or more” covered activities, and therefore did not run a risk of sweeping up third party vendors such as bakeries that made bachelor/bachelorette cakes.

On its equal protection claim, HH argued that, as “a general merchandise retailer” it was treated differently from any other general merchandise retailers that sought requisite permits from the City. Specifically, HH alleged Spencer Gifts and Victoria’s Secret were “general merchandise retailer” comparators; however, neither of these comparators were located in the same zoning area as HH. Moreover, HH failed to show any constitutionally arbitrary or irrational treatment. Since none of HH’s constitutional claims were found to have a better than negligible chance of success on the merits, and the state-law claim did not allege irreparable injury, the preliminary injunction was denied.

HH-Indianapolis LLC v Consolidated City of Indianapolis/Marion County, 2017 WL 4224753 (SD IN 9/22/2017)

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