Fed. Dist. Court in IN Grants Porn Shop Operator TRO As Municipality was Trying to Amend Zoning to Prevent Use

This post was authored by Fernando Ramos, Touro College Jacob D. Fuchsberg Law Center

Clarksville Ministries, LLC (“CM”), Plaintiff, filed an Emergency Motion for Temporary Restraining Order (“TRO”) against Defendants Town of Clarksville, Indiana, Town of Clarksville Building Department, and Rick Barr, in his Official Capacity as the Town of Clarksville’s Building Commissioner (collectively, the “Town”). CM is seeking to open an adult store that offers various retail items including sexually themed, but non-obscene, books, magazines, videos, and other products for off-site use. CM applied to receive a license to open this establishment on August 13, 2021 and had yet to receive permission to commence businessfrom the Town and filed the TRO requesting immediate relief.

CM argued that the Town’s response to their license application disregards the Town of Clarksville Zoning Ordinance (“CZO”) Subsection 60-80(A) which states: “Upon the filing of a completed application for an Adult Business license [“ABL”] or an Adult Business employee license [“ABEL”], the Enforcement Officer shall issue a temporary license to the applicant, which temporary license shall expire upon the final decision of the Enforcement Officer to deny or grant the license. Within twenty (20) days after the receipt of a completed application, the Enforcement Officer shall either issue a license, or issue a written notice of intent to deny a license to the applicant.” However, Subsection (B) provides, in relevant part, that (Filing No. 1-3 at 7) The application shall be accompanied by a diagram of the premises, showing a plan thereof, specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons will not be permitted…. Internal dimensions of all areas of the interior of the premises shall be noted….

Accordingly, CM requested that the Court immediately order the Town to issue a temporary ABL and also issue employee Timothy Miller a temporary ABEL. CM also noted that the Town was seeking to amend its zoning ordinances to permanently prevent CM’s business operations before it could even open.  The Town argued that CM had yet to submit a complete application, specifically it failed to provide the dimensions of two areas colored in green on a floorplan it provided to the Town, and also that CM did not specify the location of all overhead lighting fixtures. The Town also stated that Miller’s ABEL application is incomplete because it is missing a picture of Miller’s drivers license and his photograph. The Town argued, for the above reasons, CM has no standing to bring this suit, the dispute was not ripe and none of the proffered grounds justify a TRO.

After a review of the evidence and arguments, the Court granted CM’s motion and orders: 1. “CM a temporary ABL immediately upon submission of an updated diagram showing (1) the internal dimensions of the rooms contained in the green blocks at issue and (2) all overhead lighting fixtures; and 2. Miller a temporary ABEL immediately upon submission of (1) a copy of his drivers licenses and (2) his photograph. “

Clarksville Ministries, LLC v Town of Clarksville, Indiana, 2021 WL 4898204 (S.D. IN 9/7/2021)