morning erin the campbell on behalf of h h indianapolis appellant may it please the court this appeal presents a classic first amendment issue namely whether immunise a palette has the ability to use the power to zone as the ability to suppress unwanted speech in this case my client h h presented permit applications to the city for construction and sign permits  shortly thereafter public outcry with respect to our client operating at that particular location and that outcry we believe triggered the city's denial of our permits on the basis of h h s on wanted speech what we're presenting here in essence is a content based prior restraint as applied claim the city does not have the authority to preclude up speakers from speaking at a location they are able to operate at as of right simply because their speeches on wanted here we have an issue as to whether or not h h is a city claims an adult speaker meeting an adult business or as we say a business that presents and offers its customers adult merchandise so based on that it is allowed to operate as of right in a c three don't we contacted the city before signing a lease because at the time we had located that particular property the city was undergoing a renovation to its organises and we were concerned that they may alter the language of the ordinance which they're allowed to do but may say for example drop the threshold of five percent or ten percent of adult material and then we may not want to operate at that particular location so we confirmed with a city official from the planning department that the code as it was proposed for its future editions was going to mean the same the twenty five percent threshold based on that we signed the lease for the space and submitted what we felt were  permits that any other general retail light organization would submit namely the signed permit application and the construction permit application to conduct renovations to the space so we did seek out i guess you could say advice from a study to make sure that they were not going to alter their statute but we do not believe we need permission from from them for example of variance to operate there because we've never taken the position that we're an adult enterprise of any  know we're not we believe that we're entitled to operate there as of right because we are not going to sell more than twenty five percent of adult material we have no intent to offer video as live performances classes anything it's been pointed out that other poor prey sions in other cities under other me as a poll laws have done we have no intent to do that here so for that reason we have not taken the step to seek a variance because we you not believe that's necessary for us to do to operate there a bachelorette parties there's teachings there stashes all kinds of games fun things that bachelorettes can do for their parties those particular items would qualify as printed material especially the games and those types of materials like they're not actually adult because they're not out here i think i'm going with whom the boy something of that nature yeah i mean i don't have them in front of me and i'm not part of the record but there are plenty of materials that we sell t shirts bumper stickers  gag gifts joke books those types of things that would not their principal cereal but they would not qualify under that first definition the second definition of adult products involves devices so and they are it may specify that there are devices used for the stimulation of human gen organs we sell a portion of those devices all of that material whether it be the adult printed material or the devices combined would not exceed twenty five percent and we do this in stores across the country there are over twenty four of these stores located in cities like lexington st augustine florida oklahoma city that are not designated under those many as a palazzo as adults because we do not sell or engage in any activities at that store any of those stores that would exceed or trigger the regulation as adult yes i mean each city defines their term adult and its own way but for example st augustine and i believe oklahoma city have far stricter regulations as to what triggers regulation as an adult entity and we've operated there as non adult successfully for a number of years so that is what we're hoping to do here as well we're just looking for the opportunity to open our business and if we violate the law they can shut us down and that's our fault and we have no grounds argue otherwise but we don't intend to do that we're simply looking for the opportunity to open our store and to engage in speech both adults and non adults because we have been prohibited so far from using and both adult and non adult speech speech order the person so if the city had come to our store and inspected us they would be able to if they didn't want to accept our measurements for the floor space they could measure it themselves and determine how much floor space we had at i'm dedicated or allocated to adult material then with respect to the inventory we would provide them an inventory list with how many items we had on site that fell under the adult category and how many items on site did not fall under the adult category and they would be able to audit that and then they would be able to inspect the material themselves if they wanted to raise a concern well you know we think this is adult in this isn't we could have that discussion and they were able to assess that right in front of them and with their very own eyes with respect to the revenue it's my understanding the bickley revenue yes because the city would be less adult if we exceeded twenty five percent of our inventory our floor space or our sales of adult material at that store so with respect to the revenue it's my understanding i don't have the proprietary formula i access right now but what the store does is it keeps its inventory in its floor space artificially lower of adult materials so that if for some reason you know this month several more people than ordinarily would come in to buy that material they have a buffer and terms of the allocation for their sales so it's quantifiable we've been audited it and i don't have a new record we've been audited in other cities and we passed the audits for being a non adult establishment at those locations location not require and to get a permit as an adult business denial of permit applications for several bookstores adult bookstores and the city denied those based on four statutory grounds the first circuit dismissed three of those statutory grounds as being facially unconstitutional but the fourth round survived scrutiny and the court went on to analyze how at the city had assessed its evidence or marshal its evidence as to why the bookstore's had violated that provision of the code and in essence what the first department found and hinted at in remain to the district court was that the spatial this evidence that was purportedly of facial neutral factors was a mere cruise for defacto discrimination on the basis of unwanted content and i think that that case is instructive to this court as to how to resolve this issue we're not coming here and challenging the city's ability to annex debt shoots to ameliorate negative secondary effects what we're saying is that the way it was applied to our client in this case in which the city manufactured have evidence of this when you have more than a hint of bias i think we have more than a hint of bias here with the public statements of city officials it is the federal judiciary obligation to engage in a scrutinizing review of what went on otherwise the first amendment would have no teeth and we are assisting corporation counsel for the city of indianapolis the district court order should be affirmed because hustler has not been silenced nor has it been banned from speaking it has simply been asked to move across the street were dealt businesses may operate as a matter of right just as the district court declined to act as the zoning board and reweigh the evidence this court should do the same but when this court does review the zoning boards evidentiary record it will not find three checks but will instead find substantial evidence that hostler is an adult entertainment business based on two things one its own submissions and two the additional evidence that was submitted by the public and business and neighborhood services which is an agency within the city business and neighborhood services is the agency was in the city that offer that gives structural and sign permits and hostler apply for a sign from it and the b n f accepted that permit and on page two fifty eight through two fifty five of the record is that sign for me in the administrative record and there sign permit said there hustler hollywood and they plan on selling lingerie and erotica when the city's administrators saw that they question whether or not hustler use was going to be a conforming units so they asked hustler to submit information to clarify what type of business that they work so their initial submission which is on the administrative record at page two fifty six is a pipe chart and it says hustler hollywood and it's got an inventory and sales breakdown in that exhibit in that submission they have listed a bunch of categories and they have specifically identified adult parties adult toys adult magazines adult d v d s adult books the total for that category is sixteen point one percent they all know everything that shows adult ordinance in indianapolis specifically identify it's what is an adult product or not and you can find those definitions in the administrative record at page two forty four it goes through and identifies what's an adult product what's an adult business what's an adult bookstore what's an adult services establishment those an adult product is defined and without being overly graphic for the court it is items that display sure they have a get they have a category for adult party there's no adult party in their second submission which is on the record at page three or four but if you look at the record there are pictures of the party section and there are plates that have penises on them those are obviously adult that can't possibly fall under the game's party and toys section so if you look at that initial pie chart when you which is that inventory and sales breakdown you see adult products compromise six comprise sixteen point one percent and then there's this category called sensual care which is not defined and you can as a reasonable person could assume that that includes adult products sensual care and if you add those two together were at twenty six twenty eight point six percent then you have general merchandise but they don't tell the city what general merchandise is they do give  which is non adult that there will be marital aids marriage plays by their dictionary definition are adult sex toys they never defined them as anything else until they were before the so there is vague definitions puzzlers own submissions their slides that they presented to the b z a included reference to workshops and that's on page two seventy six their store layout which is exhibit c and d of the staff revenues well it would be difficult to assess revenue here because they haven't opened so we can't the city can't adequately rely on the revenue category we can only the city can only reasonably look at what do you tell us that you're going to sell and what does your floor space look what is your breakdown area square footage for various products and when you look at their submissions their initial submission their second submission which is on page three or four of the record and looks completely different from the differ from the initial one and is different enough in ways that i think are significant for this court the new submission is missing categories specifically newsstand and novelty items the novelty items are described in their attachment and it obviously includes adult items including vibrators and other items of that nature they've also changed categories in their initial submission they had an adult party section and in their next edition they just had a party section they used to have an adult toy section now they've got a games party toy section they didn't have they had toys as a separate category in the first admission and then toys gets lumped together with in the second submission and then in the second submission that table at three o four they've got five new categories adult products games parties and toys jewelry accessories launcher a shoes the easiest way that hustler could have been the city that it wasn't going to sell adult goods is to actually give us an itemized list of their inventory and the city could of determine without question of what they planned on selling but they didn't do that nor did they give us the definition of marital aids until b z a hearing but the city didn't act in an arbitrary fashion by taking a different dictionary definition which is hussars website has a condoms tab but doesn't have a maryland stat well the point of all of this is to show that the city reasonably determined that hostler qualify as an adult entertainment business and so the staff recommended that those two permits be denied hostler instead of applying for a variance appealed that decision to the board of zoning appeals which is a five member panel of volunteers from the city that assess the evidence put before put before it by hustler by the public and by the staff of b s and when they took all of that information together the board of zoning appeals said no we think you're an adult business and now hustler is saying that we have discriminatory discriminated against and in violation of their first amendment rights because we apply the ordinance to them when they aren't an adult business so the question this case really boils down to what is hustler is an adult business or not if it's an adult business in needs to go across the street if not it would be allowed to operate there but that's pacific question does not implicate the constitution that question would have properly been brought for judicial review in state court where the state could have a valuated the evidence that was before the b z a and determined whether or not it was arbitra negative secondary effects that are associated with adult businesses of this kind and so that was the purpose for an acting the ordinance to move not to ban adult businesses altogether but just to move them away from residential areas from may be looking for a different clientele i don't know i don't know that mother's kids would be the one in there there certainly was a lot of public opposition to them going next to the chucky cheese in the middle of our town credible witness and the b z s judge parker properly pointed out her order is allowed to take in all the evidence and decide the weight of that evidence and the credibility of the people before it  you'll notice in the long record on page sixty that hustler is run into this problem before in kentucky they told the state that they were going to be a coffee shop and then they opened and they were in adult business and litigation ensued that was before the so the p c a was allowed to say you know what we can we can look at you with a little bit of skepticism based on its past time that if we take hostlers evidentiary arguments to their literal conclusion it would render zoning laws and hearing in this meeting once the zoning board correctly found that hostlers evidence was contradictory inconsistent and recalculated and that's on the record at page five seventy six it argues that the city could have left them open and put conditions on them we could have done not had they apply for a variance they didn't they hustler will also say you're not allowed to look at what we do in other stores because we are a distinct corporate identity and you can only look at what the ohio and took pictures of their inventory and submitted it to the to b s and said from my view of things that look like fifty percent of their goods are dealt and hustler argues now before this court that the city was not allowed to take that take that evidence under consideration but has cited no legal authority that support that position even now before the district court it is clear that customer doesn't know what these categories are in the transcript of the preliminary injunction hearing before  judge parker my colleague's co counsel paul cambria said that hostler plan to sell bonded bondage materials which under our adult condition under our definitions of adult products are adults he then came back and gave a supplemental record which is that supplementary list of cases and said oh that bondage material really falls under the games category it's not adult so it's reasonable to assume that hustler is an adult entertainment business based on all the evidence that was before the b s e a and that is before this case the now before this court now would do you know who was there getting some kind of a pre something at the city and said are you guys changing your zoning sauteing rules for adult bookstore and the person from the city responded and said no here's the definition cut and pasted it exactly from the ordinance which was which is what it is now they didn't hustler never said what they were going to be because i never said hey if we do this are we that they just merely asked for the definition and the city gave it to them  trigger a constitutional issue and this one certainly doesn't hostler hasn't given the court any reason to believe that the zoning board acted in a discriminatory fashion therefore the district court opinion should be affirmed i thank you very much for just have a couple quick points that i like to make on rebuttal the first is that when the city opened up c three zones to all general light businesses that do not carry an excess of twenty five percent of adult material they opened up that area for those types of businesses so the fact that our client wants to operate there and is unable to our client has been silenced from the location where it's been told it can operate in theory in the third circuit in the case nancy it's versus market i cited in my brief the third circuit made it clear that when a speaker is entitled to speak at a particular location no matter how offensive it is including if it's eight foot  tall posters of aborted foetuses in front of the liberty bell they're entitled to be there and regardless of what impact it may have the people surrounding the area if they're allowed to be there under law they must be allowed to speak from that location and that's what we're asking to do here we are a business that is not going to sell in excess of twenty five percent of adult material and we're not going to do anything else that would trigger regulation as an adult entity under any of the other definitions in the code i want to take a minute to speak about  our submissions no case is perfectly litigated i wish that our initial projections did not include projections for the parent companies e commerce websites but they did and it was an error and we immediately corrected it and explained why it was an error and explained why our projections were distorted but this city has refused to accept the explanation from us i don't want you to get too bogged down into categories whether something is a toy  r whether something is adult based on what category it's in the bottom line is we have stated under oath repeatedly and in sworn affidavits the court that this that his definition of adult which is in their code we will not carry more than twenty five percent of material that meets that definition now if the city had allowed us to offer them the opportunity to inspect our facilities we could have discussed that and they would have been able to see that we weren't going to play fast and loose with the rules and i want to mention that this case is here because it is a constitutional issue the first amendment is at stake here if what this that he has done here is allowed to be acceptable for application of a neutral statute the first amendment has no teeth the city has pointed to cases involving subsidy of due process claims and that's not what we're making here we're making a first amendment claim which is one of the most fundamental privileges and rights that we have in this country if the city had come to our store and there was a dispute about whether a particular item qualify as adult or whether our square footage was what we said it was and and that sort of thing if we couldn't make some sort of agreement on that issue we could have then taken and they denied our permit to open we would have then brought an action to state court that would have been appropriate because the only issue there was the interpretation of state law what you have here is content based discrimination against our client because it was unpopular if you look at the record that was presented at these e a the submissions from residents and from testimony from city officials was completely in content based terms they didn't want our client the words they used were we don't want this here is going to degrade the morality of the area and that doesn't survive s first strict scrutiny which is required here because the content here is protected everything we're doing here whether it's the adult books or whether it's the non adult books the non adult much all of it is protected material and there's no hierarchy of protection in the constitution if it's protected we're allowed to engage in that speech and we're and to the extent that any and city whether it's a city or otherwise seeks to suppress our speech that subjects  a seventy five percent or more material that is not all and then a certain portion that would be adult thank you very much for your america