BBL, INC., ALVA J. BUTLER, and SANDRA K. BUTLER, Plaintiffs-Appellants,
CITY OF ANGOLA, DEAN TWITCHELL, in his official capacity, and VIVIAN LIKES, in her individual capacity, Defendants-Appellees
Argued: November 4, 2014.
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:13-CV-76-RLM-RBC -- Robert L. Miller, Jr., Judge.
For Bbl, Incorporated, Alva J. Butler, Sandra K. Butler, Plaintiffs - Appellants: Matthew Joseph Hoffer, Attorney, Bradley J. Shafer, Attorney, Shafer & Associates, Lansing, MI.
For City of Angola, DEAN TWITCHELL, in his official capacity, VIVIAN LIKES, in her individual capacity, Defendants - Appellees: Robert T. Keen Jr., Attorney, Cathleen M. Shrader, Attorney, Barrett & Mcnagny LLP, Fort Wayne, IN; Scott D. Bergthold, Attorney, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, TN.
Before MANION, WILLIAMS, and SYKES, Circuit Judges.
Sykes, Circuit Judge.
Alva and Sandra Butler and their company, BBL, Inc.
(we'll refer to them collectively as " BBL" ), purchased a restaurant in the
City of Angola, Indiana, and planned to convert it to an adult-entertainment
venue featuring nude dancing. Within days of the purchase, Angola amended its
zoning and other ordinances to make this use of the property impossible. The
Butlers and their company brought this suit alleging claims for violation of
their rights under the First Amendment and Indiana law. They moved for a
preliminary injunction. The district court denied the motion, and the plaintiffs
took this interlocutory
appeal seeking review of that decision. See 28 U.S.C. § 1292(a)(1) (authorizing interlocutory appeal of orders granting or denying injunctive relief).
The appeal is a procedural and substantive tangle. The judge denied the preliminary-injunction motion in a brief discussion at the end of a 73-page omnibus order addressing multiple motions then pending before the court. Included in the package of motions was a request by the City for judgment on the pleadings on certain parts of the legal test applicable to BBL's First Amendment claim. The judge granted this motion, leaving the final step in the First Amendment analysis for later decision. That approach was unusual; we question whether " judgment" on the pleadings can be granted on intermediate steps in a doctrinal test. This procedural step affected the judge's decision on the preliminary-injunction motion.
Still, the judge was right to deny the motion. At the preliminary-injunction hearing, BBL made a tactical decision not to contest the City's evidence that the challenged ordinances were designed to reduce the negative secondary effects of adult-entertainment establishments. BBL thus stipulated away the key factual issue in the analysis of the First Amendment claim. To the extent that the preliminary-injunction motion was premised on the state-law claims, the judge also correctly denied it.
BBL attacks other aspects of the judge's omnibus order, but our jurisdiction is limited to the denial of preliminary injunctive relief. On that issue, we affirm.
On August 9, 2012, Alva and Sandra Butler submitted the winning bid and a nonrefundable deposit to purchase a restaurant property located at 310 West Wendell Jacob Avenue in the City of Angola. The purchase also included the restaurant's liquor license and an adjoining lot. The Butlers and their company, BBL, Inc., planned to convert the restaurant to a " liquor-licensed food and beverage serving venue ... that presents to consenting adult patrons clothed female performance dance entertainment." The reference to " clothed" female dancing is misleading; the dancers would wear only " pasties and a g-string," in keeping with Indiana's public-indecency statute. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (upholding the constitutionality of the statute). This new adult-entertainment venue would be called " Showgirl."
The zoning ordinance then in effect in Angola was promulgated in 2008 and permitted " sexually oriented businesses" to locate in medium-to-large commercial districts. The 2008 ordinance also required businesses in this category to locate at least 1,000 feet away from public gathering places, residential districts, and each other. Finally, the 2008 ordinance required that any new sexually oriented business obtain an Improvement Location Permit. This prerequisite overlaps a provision in Angola's Unified Development Ordinance that requires all property owners to obtain an Improvement Location Permit before making any change in land use.
The parties agree that the property in question is located in a medium-to-large general commercial district. If everything went as the Butlers planned, Showgirl would be the first sexually oriented business in Angola.
On August 16, 2012, the Butlers contacted City Attorney Kim Shoup to confirm that Showgirl would be able to operate at this location under the City's zoning laws. The Common Council quickly instructed Shoup to research the scope of permissible
regulation of sexually oriented businesses. On August 23 Angola's zoning administrator, Vivian Likes, replied by letter to the Butlers' inquiry, stating that this use was not permitted under the 2008 ordinance because a public gathering place was located within 1,000 feet of the property. On September 10 Likes clarified that the public gathering place in question was a proposed Steuben County Multi-Use Trail, on which construction would begin in the spring of 2013.
The Butlers thought Likes was mistaken about the legal effect of the proposed trail because none of the trail heads would be within 1,000 feet of the property and other parts of the trail weren't " public gathering places" within the meaning of the ordinance. So they pressed on with their plan and closed on the property on September 11, 2012.
Angola reacted to this turn of events by changing its zoning and regulatory ordinances for sexually oriented businesses. On September 17 the Common Council adopted Angola Ordinance No. 1418-2012, entitled An Ordinance Establishing Licensing Requirements and Regulations for Sexually Oriented Businesses within the City of Angola, Indiana. This ordinance began with several pages of citations to court cases and studies regarding the negative secondary effects of sexually oriented businesses. Next came three specific factual findings:
(1) Sexually oriented businesses ... are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.
(2) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.
(3) Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. ... [T]he City's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.
The new licensing ordinance imposed a host of requirements on sexually oriented businesses, but only one is relevant here. Section 19 requires sexually oriented businesses to be located " at least 750 feet from every residence." It's ...