March 29, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
1:17-cv-00036-SEB-DML - Sarah Evans Barker, Judge.
Bauer, Flaum, and Manion, Circuit Judges.
LLC ("HH"), intended to open a retail establishment
in Indianapolis under the name "Hustler Hollywood."
After entering into a ten-year lease at 5505 E. 82nd St.
("the Property"), HH applied for sign and building
permits. Problematically, HH's proposed store was located
in a zoning district that prohibited "adult
entertainment businesses, " as defined under the
Indianapolis-Marion County Zoning Ordinance ("the
Ordinance"). Upon review, the Department of Business and
Neighborhood Services (DBNS) determined that HH was an adult
entertainment business, a decision which the Board of Zoning
Appeals (BZA) affirmed.
filed this lawsuit against the Consolidated City of
Indianapolis and County of Marion, Indiana, the DBNS, and the
BZA (collectively, "the City") seeking a
declaratory judgment that the Ordinance violated its First
and Fourteenth Amendment rights and violated state
administrative law, as well as asking for an injunction
against the City's enforcement of the Ordinance against
HH. HH challenged the Ordinance under the First Amendment
both as applied to it, as well as facially for overbreadth
and vagueness. The district court denied HH's motion for
a preliminary injunction, and HH filed this interlocutory
appeal challenging that decision only with respect to its
as-applied First Amendment claim. We affirm.
Inc., the parent company of HH, operates retail stores under
the name "Hustler Hollywood" throughout the United
States in over twenty locations. HH was incorporated in
Indianapolis in order to open a store that would sell a
variety of merchandise, including lingerie, gag-gifts,
instructional DVDs and literature, marital aids, and sexual
devices, such as dildos and vibrators. According to HH, when
it seeks to open a new retail store, it studies the
city's municipal ordinance in order to avoid being
classified as an "adult" store.
Ordinance, which went into effect on April 1, 2016,
establishes six different Commercial Zoning Districts. City
of Indianapolis and Marion County Consolidated Zoning and
Subdivision Ordinance, § 742-104(B)-(G) (April 1, 2016).
"The C-3 District (Neighborhood Commercial District) is
for the development of an extensive range of retail sales and
personal, professional and business services required to meet
the demands of a fully developed residential neighborhood,
regardless of its size." § 742-104(C).
Ordinance also regulates "adult entertainment
businesses." See § 743-305(A). An adult
entertainment business is prohibited from operating in a C-3
district as a right, although it may obtain a variance to
operate in a C-3 district. See §
743-305(A)(3)(b). However, an adult entertainment business
may operate as a right in three of the six districts: C-4
(Community-Regional District); C-5 (General Commercial
District); and C-7 (High-Intensity Commercial District).
various types of adult entertainment businesses are defined
under the Ordinance. See § 740-202(A). Relevant
to this appeal, an "adult bookstore" is defined as
establishment having at least 25% of its:
1. Retail floor space used for the display of adult products;
2. Stock in trade consisting of adult ...