Posted by: Patricia Salkin | November 24, 2020

Fed. Dist. Court in IN Grants Motion for Preliminary Injunction Against Zoning Board of Appeals in Adult Business Case

This post was authored by Georgia Reid, Touro Law Center

Mike Bickers, a property owner in Terre Haute, Indiana, was denied a special use permit to operate an adult business.  Bickers sued the City of Terre Haute Board of Zoning Appeals (“BZA”), the members of the BZA, and the City of Terre Haute, challenging the zoning and licensing scheme that regulates the permitted locations of adult businesses.  Bickers then moved for a preliminary injunction.  The District Court granted the motion, because, it held, the permit scheme controlling adult businesses seeking to operate in Terre Haute confers “unfettered discretion on the City and lacks time limits for decision[s].”  The Court found that the zoning ordinance was an over-broad time, place, and manner regulation, and an arbitrary prior restraint.

A preliminary injunction is a legal remedy that must meet a three-pronged test.  A plaintiff must show (1) that he will suffer irreparable harm absent preliminary relief; (2) that traditional legal remedies are inadequate; and (3) that he has some likelihood of success on the merits.  The district court in this case found that Bickers satisfied each element of this test, with the bulk of the Court’s analysis on the third prong.  In relation to the third prong, he Court analyzed the merits of the facial challenge to the zoning ordinance. 

The Court stated that licensing regulations are time, place, and manner restrictions that limit the First Amendment right to freedom of expression.  A time, place, and manner regulation is subject to intermediate scrutiny.  The law must meet a three pronged test: it must (1) serve a substantial governmental interest, (2) be narrowly tailored to serve that interest, and (3) allow for reasonable alternative avenues of communication.  The Court held that Bickers had persuasive arguments on his facial challenge that the zoning ordinance and licensing scheme were unconstitutional. 

The Court found that the denial of Bicker’s application was arbitrary and was not narrowly tailored to serve any objective, legitimate government interest. The ordinance amounted to a prior restraint because it granted the BZA unfettered discretion in deciding whether to grant or deny a special use.  Any licensing scheme must bound the government’s discretion using  narrow, objective, and definite standards.  These standards were lacking in this case.  The BZA claimed they denied the permit due to a mistake on Bicker’s application, but the Court found that BZA did not show a reason, other than the opinions of citizens, to deny Bickers a special use permit.  Thus, the BZA was disfavoring his speech arbitrarily, based on subjective criteria. 

Bickers said the ordinance operated as an illegal prior restraint because it did not place a time limit on the BZA’s decision. The Court agreed with this as well and found this was unconstitutional.  Additionally, Bickers argued the ordinance did not leave any alternative avenues for communication for his expression.  The Court agreed that this was entirely plausible. Finally, Bickers argued that Terre Haute’s requirement that adult businesses obtain a second permit from the City’s Board of Public Works also amounted to a prior restraint.   

The factual and procedural background to this case highlights how essential it is that zoning board decisions are not arbitrary, and decisions are not based on unfettered discretion.  If the city wanted to restrict adult businesses, then it needed to do so in a way that was based on narrow and objective standards.  Many citizens of the town, parents, a pastor, and businesses did not want Bickers to open up this strip club.  The zoning ordinance was open-ended, leaving decisions to be based on subjective criteria.  In order to constitutionally restrict adult businesses, a more objective, evidence-based approach would better serve the town of Terre Haute in the future.  Otherwise, the City is essentially asking the Court to presume that it is acting in “good faith” and not simply denying permits in order to suppress the content of adult businesses’ speech. 

Bickers V. Saavedra, et al., 2020 WL 6905310 (S.D. Ind. 11/24/2020).

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