In the

United States Court of Appeals

For the Seventh Circuit

No. 17-3023

HH-INDIANAPOLIS, LLC,

Plaintiff-Appellant,

v.

CONSOLIDATED CITY OF INDIANAPOLIS

AND COUNTY OF MARION, INDIANA,

et al.,

Defendants-Appellees.

Appeal 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.

ARGUED MARCH 29, 2018 — DECIDED MAY 7, 2018

Before BAUER, FLAUM, and MANION, Circuit Judges.

BAUER, Circuit Judge. HH-Indianapolis, 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
2 No. 17-3023

was located in a zoning district that prohibited “adult entertainment businesses,” as defined under the IndianapolisMarion 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.

HH 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.

I. BACKGROUND

HH-Entertainment, 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, gaggifts, 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.
No. 17-3023 3

The 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). 

The 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). Id. 

The various types of adult entertainment businesses are

defined underthe Ordinance. See § 740-202(A). Relevant to this

appeal, an “adult bookstore” is defined as follows:

An establishment having at least 25% of its:

1. Retail floor space used for the display

of adult products; or

2. Stock in trade consisting of adult

products; or

3. Weekly revenue derived from adult

products.
4 No. 17-3023

Id. “Adult products” means any media (e.g., books, films,

magazines, photographs) “that are distinguished or characterized by their emphasis on matter depicting, describing or

relating to specified sexual activities or specified anatomical

areas;” as well as any device “designed or marketed as useful

primarily for the stimulation of human genital organs, or for

sadomasochistic use or abuse,” including, but not limited

to, chains, dildos, muzzles, phallic shaped vibrators, and

whips. Id. Additionally, the Ordinance defines an “adult

service establishment” as “[a]ny building, premises, structure

or other facility, or part thereof, under common ownership or

control which provides a preponderance of services involving

specified sexual activities1or display of specified anatomical

areas.2

” Id.

1

 “Specified sexual activities” is defined as any of the following:

(1) Human genitals in a state of sexual stimulation or

arousal; (2) Acts of human masturbation, sexual intercourse or sodomy; (3) Fondling or other erotic touching of

human genitals, pubic regions, buttocks or female breasts;

(4) Flagellation or torture in the context of a sexual relationship; (5) Masochism, erotic or sexually oriented

torture, beating or the infliction of pain; (6) Erotic touching, fondling or other such contact with an animal by a

human being; or (7) Human excretion, urination, menstruation, vaginal or anal irrigation as part of or in connection

with any of the activities set forth in” (1) through (6). 

 § 740-202(A).

2

“Specified anatomical areas” is defined as any of the following: “(1) Less

than completely and opaquely covered human genitals, pubic region,

buttocks, anus or female breasts below a point immediately above the top

of the areolae; (2) Human male genitals in a discernibly turgid state, even

(continued...)
No. 17-3023 5

In early 2016, HH began exploring the possibility of

opening a store in Indianapolis. HH identified a vacant

commercial property at 5505 E. 82nd Street, on Indianapolis’

northeast side. The Property is located in a C-3 district,3

and

a driveway separates the Property from a Chuck E. Cheese’s,

a kid-friendly restaurant and entertainment center. Notably,

directly across 82ndStreet to the north of the Property is a C-4

district where HH could operate freely as an adult entertainment business as a right. 

HH was aware that the City was revising the then-existing

zoning ordinance, and preemptively contacted City officials in

order to apprise themselves of the revised Ordinance, particularly the “adult” provisions. According to HH, it entered into

a ten-year lease at the Property on July 14, 2016, in reliance on

the communications it had with City officials. Shortly thereafter, HH applied for a structural permit to remodel the Property, and for a sign permit to hang exterior signs. The DBNS

flagged the applications after noticing that the proposed signs

stated “Hustler Hollywood,” and advertised such things as

2

 (...continued)

if completely and opaquely covered.” § 740-202(A).

The entire phrase “services involving specified sexual activity or display

of specified anatomical areas” is defined as “[a]ny combination or [two] or

more” among five different activities. § 740-202(A). The relevant two

categories for the purpose of this appeal are discussed below. 

3 Additionally, the Property is 355 feet from a D-2 dwelling district. Under

the Ordinance, adult entertainment businesses may not operate as a right

within 500 feet of a dwelling district. Thus, even if the Property were not

located in a C-3 district, it would still need a variance to operate within that

range of a dwelling district. 
6 No. 17-3023

“erotica.” Given that the Property is located in a C-3 district,

the DBNS was concerned HH was intending to operate an

adult entertainment business. HH’s applications were put on

hold, and the DBNS requested additional information in order

to verify that HH was permitted to operate in a C-3 district. In

response, HH submitted a weekly inventory and sales projection, which projected the stock and sales of adult products, a

floor plan with square footage designations, and a description

of the business. After reviewing this information, which the

DBNS described as “imprecise and contradictory,” the DBNS

concluded that HH was either an adult bookstore or an adult

service establishment. 

Instead of electing to seek a variance with the DBNS, HH

appealed to the BZA. Prior to the hearing before the BZA, the

DBNS staff submitted a report explaining its decision. In

explaining the adult bookstore classification, the DBNS noted

the inventory and sales projection provided by HH indicated

that only 16.1% of their inventory and 23.9% of their sales

would derive from “adult products.” However, the DBNS

pointed to other projections that rendered those figures

imprecise: 32.2% of inventory and 12.8% of sales were broadly

categorized as “general merchandise;” and “toys” accounted

for 13.1% of inventory and 28.8% of sales. Adding either of

these figures to the adult products figures would put HH

above the 25% threshold for adult bookstores under the

Ordinance. Moreover, “sensual care” products were to be sold

behind a separation wall along with adult products; yet,

sensual care products were not included in the adult products

projection. HH stated in their business description that sensual

care products included gels, oils, lotions and marital aids, and
No. 17-3023 7

the DBNS noted that “[m]arital aids, by definition, are sex

toys.”

Further, the DBNS found that even if HH was not an adult

bookstore, it would be classified as an adult service establishment. Under the Ordinance, providing “a preponderance of

services involving specified sexual activities or display of

specified anatomical areas” means any combination of two or

more specified categories of services. According to the DBNS,

the two categories that applied to HH were (1) “[t]he sale or

display” of media “characterized by an emphasis upon the

depiction or description of specified sexual activities or

specified anatomical areas;” and (2) the presentation of such

media for observation by patrons. The DBNS concluded that

HH plainly fit under the first category based on the products

it intended to sell, as well as the presentation-of-media category since other Hustler Hollywood locations offered workshops and classes involving live demonstrations or videos,

with titles such as “Masturbation Workshop.”

The BZA held a hearing on December 6, 2016. HH appeared

by counsel and presented a revised inventory and sales

projection. HH claimed that the initial projections had mistakenly included figures from nationwide-stores and online sales.

In the new projections, only 8.7% of inventory and 12.4% of

sales would be “adult products.” HH insisted that it did not

intend to operate an adult bookstore or an adult service

establishment, and that it would not offer any workshops or

classes that are offered at other Hustler Hollywood stores.

Finally, HH invited City officials to inspect the Property once

it was ready to open.
8 No. 17-3023

Remonstrators, a group composed of community members,

property owners, and tenants, appeared by counsel in opposition to HH’s proposed store. They submitted evidence to

counter HH’s argument that it did not intend to operate an

adult entertainment business, including photographs from

other Hustler Hollywood locations showing adult products

visibly displayed throughout the store, as well as advertisements from the Hustler Hollywood website for workshops and

classes at their stores. The Remonstrators also emphasized that

the Property was situated next to Chuck E. Cheese’s, as well as

a bus stop frequented by school children. A City councillor also

appeared at the hearing and argued that HH-Entertainment

had a history of deception in opening stores nationwide. At the

conclusion of the hearing, the BZA voted unanimously, 5-0, to

affirm the decision of the DBNS. 

Rather than seek judicial review of that decision in an

Indiana state court pursuant to Ind. Code § 36-7-4-1614(d), HH

filed this lawsuit against the City on January 5, 2017. HH

sought declaratory and injunctive relief under three different

First Amendment theories: (1) an as-applied challenge to the

City’s determination that HH is an adult entertainment

business; (2) a facial challenge for vagueness to the definition

of an “adult service establishment;” and (3) a facial challenge

for overbreadth to the definition of an “adult service establishment.” HH also sought relief under the Equal Protection

Clause of the Fourteenth Amendment, and challenged the

City’s determination as arbitrary, capricious, and unsupported

by substantial evidence under Indiana law.

On June 6, 2017, HH filed for a preliminary injunction.

After briefing and a hearing, the court denied HH’s motion on
No. 17-3023 9

September 22, 2017. HH-Indianapolis LLC v. Consol. City of

Indianapolis/Marion Cty., Ind., 265 F. Supp. 3d 873 (S.D. Ind.

2017). The court found that HH was unlikely to succeed on the

merits under any of the First Amendment theories, or under

the Equal Protection claim. Id. at 881–891. Additionally, the

court concluded that HH had not alleged an irreparable injury

in its state law claim. Id. at 891. HH then filed this interlocutory

appeal pursuant to 28 U.S.C. § 1292(a)(1).

II. DISCUSSION

“A preliminary injunction is an extraordinary remedy.”

Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d

1034, 1044 (7th Cir. 2017). A party seeking a preliminary

injunction must satisfy all three requirements in the “threshold

phase” by showing that (1) it will sufferirreparable harmin the

period before the resolution of its claim; (2) traditional legal

remedies are inadequate; and (3) there is some likelihood of

success on the merits of the claim. Girl Scouts of Manitou

Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079,

1086 (7th Cir. 2008). If a party makes the necessary showing,

the court moves to the “balancing phase.” Id. At that phase, the

court employs a sliding-scale approach and “weighs the factors

against one another, assessing whether the balance of harms

favors the moving party or whether the harm to other parties

or the public is sufficiently weighty that the injunction should

be denied.” BBL, Inc. v. City of Angola, 809 F.3d 317, 324 (7th

Cir. 2015). 

HH contends that the district court erred with respect to its

finding that HH was not likely to succeed on the merits of its

as-applied First Amendment claim. The likelihood of success

requirement is a low threshold; HH must only show that its
10 No. 17-3023

claim’s chance of success is “better than negligible.” Whitaker,

858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813

(7th Cir. 1999)). We review the denial of a preliminary injunction for an abuse of discretion, reviewing the legal conclusions

de novo and the factual findings for clear error. Valencia v. City

of Springfield, Ill., 883 F.3d 959, 966 (7th Cir. 2018).

At oral argument, HH described its claim as a “contentbased, prior restraint, as-applied claim.” Combining these

various terms from First Amendment jurisprudence into a

single claim requires some unpacking. We begin with the

framework for analyzing zoning regulations of sexually

oriented adult businesses under the First Amendment, which

derives from the Supreme Court’s decisions in Young v.

American Mini Theatres, Inc., 427 U.S. 50 (1976) (plurality), City

of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and City

of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality). Under this framework, regulations that do not prohibit

adult businesses altogether, but merely regulate theirlocation,

are analyzed as time, place, and manner regulations. Renton,

475 U.S. at 46. The regulations must be “content-neutral,”4

meaning they are not aimed at the content of the adult businesses, but rather the harmful and undesirable “secondary

effects” of such businesses on the surrounding community.

4

“The ‘content-neutral’ label in this context is a misnomer; regulations

aimed at adult businesses apply to certain types of speech and not others.

As such, Justice Kennedy remarked in his Alameda Books concurrence that

‘[t]hese ordinances are content based, and we should call them so.’” BBL,

809 F.3d at 325 (quoting Alameda Books, 535 U.S. at 448 (Kennedy, J.,

concurring)). 
No. 17-3023 11

Alameda Books, 535 U.S. at 444–47 (Kennedy, J., concurring);5

Renton, 475 U.S. at 47; Am. Mini Theaters, 427 U.S. at 70–72. 

If the regulations are “content-based,” they “would be

considered presumptively invalid and subject to strict scrutiny.” Alameda Books, 535 U.S. at 434 (plurality opinion).

However, “content-neutral” time, place, and manner regulations of adult businesses are subject to intermediate scrutiny

which means that: (1) the regulations must be “designed to

serve a substantial governmental interest” in curbing the

secondary effects, and be narrowly tailored toward that

interest; and (2) they must “allow[] for reasonable alternative

avenues of communication.” Renton, 475 U.S. at 50–52; see also

BBL, 809 F.3d at 327. 

HH argues that the City’s enforcement of the Ordinance, as

applied to them, has “silenced” their ability to exercise their

First Amendment rights at the location of their choosing.

According to HH, the City classified them as an adult entertainment business in order to “suppress” unwanted speech, in

light of the public outcry from the Remonstrators. 

However, HH’s speech has not been silenced or suppressed; rather, HH has only been told that it cannot operate

in a particular commercial district and must move elsewhere.

“A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary

effects and a trivial decrease in the quantity of speech.”

Alameda Books, 535 U.S. at 445 (Kennedy, J., concurring).

5 Alameda Books was decided by a plurality, and we have treated Justice

Kennedy’s concurring opinion as the holding of the case. See BBL, 809 F.3d

at 325. 
12 No. 17-3023

Unquestionably, the City has provided HH with reasonable

alternative avenues of communication in a number of other

commercial districts, a fact HH does not dispute. HH may

operate as a right in a C-4, C-5, or C-7 district, and a C-4 district

lies directly north of the Property. “[T]he First Amendment

requires only that [the City] refrain from effectively denying

[HH] a reasonable opportunity to open and operate” an adult

entertainment business within Indianapolis. Renton, 475 U.S. at

54. There is simply “no First Amendment objection” when the

City exercises its zoning powerto reduce the secondary effects

of adult businesses, and HH has alternative avenues of

communication. Alameda Books, 535 U.S. at 445 (Kennedy, J.,

concurring).

Moreover, HH does not dispute that the Ordinance is

“content-neutral,” or that the City’s interest in reducing the

secondary effects of adult businesses, codified at length in the

Ordinance, is a sufficient or substantial interest. See City of

Indianapolis and Marion County Consolidated Zoning and

Subdivision Ordinance § 743-305(A)(1) (“It is the purpose of

this section ... to regulate adult entertainment businesses ... to

promote the health, safety, morals, and general welfare of the

citizens of Marion County, and to establish reasonable and

uniform provisions to prevent the deleterious effects of adult

entertainment businesses within Marion County.”) Nor could

it since the Supreme Court has repeatedly recognized that this

is a legitimate interest. See Alameda Books, 535 U.S. at 444

(Kennedy, J., concurring) (“Municipal governments know that

high concentrations of adult businesses can damage the value

and integrity of a neighborhood ... . The law does not require

a city to ignore these consequences if it uses its zoning power

in a reasonable way to ameliorate them without suppressing
No. 17-3023 13

speech.”); American Mini Theaters, 427 U.S. at 71 (“[T]he city’s

interest in attempting to preserve the quality of urban life is

one that must be accorded high respect.”). Accordingly,

because the Ordinance is content-neutral, serves a substantial

interest, and allows for HH to operate in numerous other

commercial districts, HH’s likelihood of success on its First

Amendment claim is not better than negligible. 

HH insists it demonstrated a likelihood of success on the

merits because the district court did not employ the proper

level of scrutiny in reviewing its claim. According to HH,

federal courts dealing with an as-applied challenge have a

“duty to engage in a critical examination of the government’s

reasoning and evidentiary support for applying the ordinance

in a particular way.” That sounds like strict scrutiny. HH

directs us to a number of cases where courts have performed

some heightened level of scrutiny in analyzing an as-applied

First Amendment challenge. See,e.g., In re Primus, 436 U.S. 412,

432–39 (1978)(applying “exactingscrutiny” to South Carolina’s

attorney regulatory scheme as applied to an attorney soliciting

a prospective client by mail); United States v. Marcavage, 609

F.3d 264, 274–91 (3d Cir. 2010) (applying strict scrutiny to a

content-based application of national park regulation against

an anti-abortion protesterin a public forum). Yet, none of these

cases involve as-applied challenges to constitutional time,

place, and manner zoning regulations of adult businesses

which the Supreme Court has made abundantly clear are

subject to intermediate scrutiny.

6

6 HH also relies on Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115

(1st Cir. 1981), to support a heightened level of scrutiny. That case involved

(continued...)
14 No. 17-3023

The critical inquiry in this as-applied challenge is whether

the City’s application of the Ordinance to HH resulted in an

unconstitutional effect, i.e., an abridgment of its First Amendment rights. See Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 805–12 (1984) (finding no

unconstitutional effect in the application of a time, place, and

mannerordinance which restricted a political group’s ability to

post signs on utility poles). The City’s application of the

Ordinance has resulted only in an incidental restriction on

HH’s speech in a particular location. HH has not been deprived of their First Amendment right to operate in Indianapolis. The City has simply told HH that it cannot operate in a C-3

district, while also providing numerous other avenues for

speech in C-4, C-5, and C-7 districts, including a C-4 district

directly across the street.

The City acknowledges that the Ordinance functions as a

form of prior restraint, and in fact, did so in this case. Yet,

“priorrestraints are not per se unconstitutional,” Schultz v.City

of Cumberland, 228 F.3d 831, 851 (7th Cir. 2000), and we have

previously stated that prior restraints “are constitutionally

legitimate if they are proper time, place, or manner restrictions.” Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 1000

(7th Cir. 2002). As we have already found, the Ordinance is a

constitutional time, place, and manner regulation. Moreover,

6

 (...continued)

an as-applied challenge to a municipal licensing ordinance that regulated

adult businesses. See id. at 1118–20. However, it lacks persuasive value

because it was decided before the Supreme Court’s decision in Renton,

which established the intermediate scrutiny framework for adult zoning

ordinances.
No. 17-3023 15

HH does not allege a lack of procedural safeguards in the

City’s zoning scheme that the Supreme Court has noted may

result in unconstitutional prior restraint. See FW/PBS, Inc. v.

City of Dallas, 493 U.S. 215, 225–28 (1990) (noting that censorship may result when there is unfettered discretion in the

hands of public officials, or a lack of prompt judicial review).

Ultimately,HH’s “content-based, priorrestraint, as-applied

claim” boils down to the following: (1) the evidence does not

support the DBNS and BZA’s determination that HH was

either an adult bookstore or an adult service establishment; (2)

the City intended to restrain HH’s speech given the public

outcry from the Remonstrators; and (3) the City should have at

least inspected the Property or allowed HH to open there

conditionally. However, an erroneous application of a zoning

ordinance is unlikely to be a First Amendment violation.

Indeed, federal courts “are not zoning boards of appeal,”

CEnergy-Glenmore Wind Farm No. 1, LLC v. Town of Glenmore,

769 F.3d 485, 487 (7th Cir. 2014), and Indiana law provides

judicial review for zoning decisions that are challenged as

arbitrary, capricious, or unsupported by the evidence. See Ind.

Code § 36-7-4-1614(d). In fact, the Supreme Court has found

ordinary state court civil procedures sufficient to protect any

First Amendment interests in erroneous zoning determinations. See City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S.

774, 782 (2004).

Nothing that HH has alleged gives rise to an unconstitutional effect or First Amendment violation. The BZA holds

hearings in orderto listen to testimony andevidence, including

evidence from the DBNS and “other persons,” such as the

Remonstrators. See Ind. Code § 36-7-4-920(e)–(f); Metro Board
16 No. 17-3023

of Zoning Appeals of Marion County, Indiana, Rules of

Procedure (2014). The BZA did not have to believe HH when

it stated it would not offer workshops or classes, nor did it

have to ignore evidence from other Hustler Hollywood stores.

Additionally, the BZA was not required to disregard HH’s

initial inventory and sales projections which contradicted their

second projections. HH presented no evidence in the district

court or on appeal that officials from the DBNS or BZA

displayed any bias or censorial intent in their determinations.

Furthermore, the City was under no constitutional obligation

to inspect the Property or allow HH to open conditionally

before making its determination. 

Ultimately, the question of whether the City’s determination rested on a sufficient evidentiary basis is properly suited

for state court review. That evidentiary issue does not present

a First Amendment violation, nor does it justify the issuance of

a preliminary injunction.

III. CONCLUSION

Since HH has failed to establish that its as-applied First

Amendment claim has a better than negligible chance of

success on the merits, it is not entitled to a preliminary injunction. Accordingly, the district court’s denial of the issuance of

a preliminary injunction is AFFIRMED.