Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 1 of 28

ATTORNEYS FOR APPELLANTS

J. Michael Murray

Steven D. Shafron

William C. Livingston

Berkman, Gordon, Murray & DeVan

Cleveland, Ohio

James P. Buchholz

Angelica N. Fuelling

Tourkow, Crell, Rosenblatt & Johnson, 

LLP

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Robert W. Eherenman

Haller & Colvin, P.C.

Fort Wayne, Indiana

Scott D. Bergthold

Law Office of Scott D. Bergthold

Chattanooga, Tennessee

IN THE

COURT OF APPEALS OF INDIANA

B&S of Fort Wayne, Inc., d/b/a 

Showgirl I; Showgirl III, Inc., 

d/b/a Showgirl III; and JCF, 

Inc., d/b/a Brandy’s Lounge,

Appellants-Plaintiffs,

v.

City of Fort Wayne, Indiana,

Appellee-Defendant.

October 29, 2020

Court of Appeals Case No.

20A-MI-466

Appeal from the Allen Superior 

Court

The Honorable Jennifer L. 

DeGroote, Special Judge

Trial Court Cause No.

02D09-1909-MI-662

Najam, Judge.
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 2 of 28

Statement of the Case

[1] In August of 2019, the City of Fort Wayne (“the City”) passed an ordinance, 

Fort Wayne Ordinance No. G-19-19 (“the ordinance”), which regulates

“sexually oriented businesses,” including “adult cabarets.” Appellants’ App. 

Vol. 2 at 47. B&S of Fort Wayne, Inc., d/b/a Showgirl I; Showgirl III, Inc., 

d/b/a Showgirl III; and JCF, Inc., d/b/a Brandy’s Lounge (collectively “the 

Nightclubs”) own adult cabarets located in Ft. Wayne. In September of 2019, 

the Nightclubs filed a complaint seeking a preliminary injunction, a permanent 

injunction, and a declaratory judgment. In particular, the Nightclubs alleged 

that the ordinance violated their constitutional rights to free speech and posed 

“irreparable harm” to them if it were enforced. Id. at 96. In response, the City 

filed a counterclaim seeking its own preliminary injunction to enforce the 

ordinance and a declaratory judgment that the ordinance was constitutional. 

Following a hearing on the motions, the trial court denied the Nightclubs’

motion for a preliminary injunction and granted the City’s motion for a 

preliminary injunction.

[2] The Nightclubs appeal the trial court’s order denying their motion for a 

preliminary injunction. The Nightclubs present three dispositive issues for our 

review:

1. Whether the trial court erred when it found that the

Nightclubs are unlikely to succeed on the merits of their

claim that the ordinance is prohibited by Indiana Code 

Section 7.1-3-9-6.
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2. Whether the trial court erred when it found that the

Nightclubs are unlikely to succeed on the merits of their

claim that the ordinance is preempted by Indiana Code 

Section 36-1-3-8(a)(7).

3. Whether the trial court erred when it found that the 

Nightclubs are unlikely to succeed on the merits of their

claim that the ordinance is unconstitutional under Justice 

Kennedy’s concurring opinion in City of Los Angeles v. 

Alameda Books, Inc., 535 U.S. 425 (2002).

[3] We affirm.

Facts and Procedural History

[4] The Nightclubs own and operate adult cabarets in Ft. Wayne (“the cabarets”), 

which serve alcohol to customers who come to watch partially-nude dancers

perform. In addition to performances on a stage, dancers perform for 

customers table-side, and they perform lap dances for customers in “semiprivate” areas separate from the main stage area. Id. at 50. Whether dancers 

are performing on stage, at a table, or in the lap dance area, they frequently 

make direct physical contact with customers.

[5] On August 13, 2019, the Ft. Wayne City Council adopted the ordinance, which 

was intended to “protect and preserve the health, safety, and welfare” of both

patrons of sexually oriented businesses and “citizens of the City[.]” Ex. 1 at 1. 

The ordinance provides in relevant part as follows:

§121.16 PROHIBITED CONDUCT.
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(A) No patron, employee, or any other person shall knowingly 

or intentionally, in a sexually oriented business, appear in a state 

of nudity or engage in a specified sexual activity.

(B) No person shall knowingly or intentionally, in a sexually 

oriented business, appear in a semi-nude condition unless the 

person is an employee who, while semi-nude, remains at least six (6) feet 

from all patrons and on a stage at least eighteen (18) inches from the floor 

in a room of at least six hundred (600) square feet.

(C) No employee who appears semi-nude in a sexually 

oriented business shall knowingly or intentionally touch a 

customer or the clothing of a customer on the premises of a 

sexually oriented business. No customer shall knowingly or 

intentionally touch such an employee or the clothing of such an 

employee on the premises of a sexually oriented business.

* * *

(E) No operator of a sexually oriented business shall 

knowingly or recklessly allow a room in the sexually oriented 

business to be simultaneously occupied by any patron and any 

other employee who is semi-nude or who appears semi-nude on 

the premises of the sexually oriented business, unless an operator 

of the sexually oriented business is present in the same room. . . .

Ex. 1 at 21-22 (emphasis added).

[6] In their complaint seeking a preliminary injunction, the Nightclubs first alleged 

that the ordinance “runs afoul of [Indiana Code Section] 7.1-3-9-6,” which 

prohibits a city from enacting an ordinance “which in any way, directly or 

indirectly, regulates, restricts, enlarges, or limits the operation or business of the 

holder of a liquor retailer’s permit[.]” Appellants’ App. Vol. 2 at 87. In 
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particular, the Nightclubs asserted that the ordinance “impermissibly regulates, 

restricts and limits the operation” of their businesses in several ways in violation 

of the statute, including: requiring the Nightclubs “to undertake extensive and 

costly remodeling of their permit premises” to satisfy the six-foot spacing 

requirement; “diminish[ing] the number of patrons that their businesses can 

accommodate and thus reduce the audience”; and requiring “that an Operator 

of the business be present in the same room whenever a semi-nude performance 

is taking place.” Id. at 87-88.

[7] The Nightclubs also alleged that the ordinance is preempted by Indiana Code 

Section 36-1-3-8(a)(7), which provides that a city does not have the power 

under the Home Rule Act “to regulate conduct that is regulated by a state 

agency, except as expressly granted by statute.” In particular, the Nightclubs 

averred that, because the Alcohol and Tobacco Commission “has chosen to 

regulate adult entertainment in alcohol permit premises, . . . the City lacks the 

authority to do so.” Appellants’ App. Vol 2 at 89. Finally, the Nightclubs 

alleged that the ordinance violates various rights they have under the federal 

and state constitutions. In its counterclaim, the City sought a preliminary 

injunction and a permanent injunction “to prevent and to punish certain 

unlawful acts contrary to” the ordinance. Id. at 139.

[8] Following a hearing on the complaint and counterclaim, the trial court denied 

the Nightclubs’ request for a preliminary injunction and granted the City’s 

request for a preliminary injunction. In its order, the trial court made thorough

findings and conclusions, including in pertinent part, the following:
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12. [The Nightclubs] are not in complete compliance with the 

Ordinance.

13. [The Nightclubs] all have semi-nude female dancers who 

start in a full outfit and then strip down to a “t-bar” (otherwise

commonly known as g-string) and a latex product covering their 

nipples. [The Nightclubs] acknowledge the latex product can 

wear off during a performance requiring the dancer to leave the 

stage and reapply it.

14. [The Nightclubs] have female employees who perform lap 

dances or other private and semi-private dances in VIP 

rooms. . . . All of these dances involve performers, in a seminude state, touching customers or customers’ clothing. 

Performers are not six (6) feet away from customers on stage 

while dancing.

15. [The Nightclubs] allow customers to tip semi-nude 

performers by “tucking bucks” into a performer’s garter and tbar. This method of tipping involved customers touching seminude performers or the performers’ clothing. Performers are not 

six (6) feet away from customers when this method of tipping 

occurs.

16. The Ordinance imposes fines on an employee or business 

that violates the Ordinance. . . .

* * *

17. Fort Wayne has not yet enforced the Ordinance and has 

agreed to withhold enforcement of the Ordinance while awaiting 

a ruling from the Court.

18. [The Nightclubs] all possess a liquor permit issued by the 

State of Indiana’s Alcohol and Tobacco Commission.
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19. Title § 7.1 of the Indiana Code governs Alcohol and Tobacco 

in Indiana.

20. [Indiana Code] § 7.1-1-1-1 states:

The following are the general purposes of this title:

(1) To protect the economic welfare, health, peace, 

and morals of the people of this state.

(2) To regulate and limit the manufacture, sale, 

possession, and use of alcohol and alcoholic 

beverages. . . .

21. [Indiana Code] § 7.1-1-2-2 states:

Except as provided in [I.C. §] 7.1-5-1-3, [I.C. §] 7.1-5-

1-6, [I.C. §] 7.1-5-7 and [I.C. §] 7.1-5-8, this title

applies to the following:

a) The commercial . . . selling, . . . furnishing, or

possession of alcohol, alcoholic beverages, industrial

alcohol, malt, malt syrup, malt extract, liquid malt or

wort. . . .

22. [I.C.] § 7.1-3-9-6 states:

a) A city . . . shall not enact an ordinance . . . which 

in any way, directly or indirectly, regulates, restricts, 

enlarges, or limits the operation or business of the 

holder of a liquor retailer’s permit as provided in this 

title.

b) A city . . . shall not enact an ordinance . . .

covering any other business or place of business for 

the conduct of it in such a way as to prevent or 

inhibit the holder of a liquor retailer’s permit from 

being qualified to obtain or continue to hold the 
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permit, or operate to interfere with or prevent the 

exercise of the permittee’s privileges under the

permit.

23. Title 905 of the Indiana Administrative Code (“IAC”) 

addresses the Alcohol and Tobacco Commission.

24. Title 905, Article 1, Rule 16.1 covers dancing and provides:

Sec. 1 Dancing permitted

“It is permissible for permittees to allow dancing 

upon their permit premise without the necessity of 

first obtaining a permit or other authorization from 

the Alcohol and Tobacco Commission (commission). 

All floor plans must be approved by the 

commission.”

Sec. 3 Nudity in exhibition or professional dancing;

restrictions

a. For the purpose of this rule, the following 

definitions apply:

1) “Nudity” means the showing of the 

human male[ or female] genitals, pubic 

area, or buttocks with less than a full[y]

opaque covering, the showing of the 

female breast with less than a fully 

opaque covering of any part of the

nipple, or the showing of covered male

genitals in a discernible turgid state. . . .

b. It is unlawful for a permittee to knowingly allow a

person to engage in sexual intercourse, deviate sexual 

conduct, as defined in [I.C.] § 35, to appear in a state 

of nudity or to fondle the genitals of himself or
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another person while on the permittee’s licensed

premises.

PRELIMINARY INJUNCTION STANDARD

To obtain a preliminary injunction, the moving party must 

demonstrate by a preponderance of the evidence that: (1) its 

remedies at law are inadequate, thus causing irreparable harm 

pending resolution of the substantive action; (2) there exists a 

reasonable likelihood of success at trial; (3) the threatened injury 

to the movant outweighs the potential harm to the nonmovant 

from the granting of an injunction; and (4) the public interest

would not be disserved. See State v. Econ. Freedom Fund, 959 

N.E.2d 794, 803 (Ind. 2011) (citing Apple Glen Crossing, LLC v. 

Trademark Retail, Inc., 784 N.E.2d 484, 487 (Ind. 2003). If the 

movant fails to prove any of these requirements, the trial court 

should deny a request for a preliminary injunction. Apple Glen 

Crossing, 784 N.E.2d. at 487.

However, “[w]here the action to be enjoined is unlawful, the 

unlawful act constitutes per se ‘irreparable harm’ for the purposes 

of the preliminary injunction analysis.” Union Twp. Sch. Corp. v. 

State ex rel. Joyce, 706 N.E.2d 183, 192 (Ind. Ct. App. 1998); Short 

on Cash.net of New Castle, Inc. v. Dep’t of Fin. Insts., 811 N.E.2d 

819, 823 (Ind. Ct. App. 2004). When the per se rule is invoked, 

the court has determined that a party’s actions have violated a 

statute and, thus, that the public interest is so great that the

injunction should issue regardless of whether the plaintiff has 

actually incurred irreparable harm or whether the plaintiff will 

suffer greater injury than the defendant. Id.

In this case [the Nightclubs] argue Fort Wayne’s actions in 

enacting the Ordinance are unlawful and, therefore, 

unconstitutional and the per se rule on preliminary injunctions 

should be invoked on [the Nightclubs’] Motion. Conversely,

Fort Wayne argues the Ordinance is valid and [the Nightclubs]

are engaging in unlawful acts as [the Nightclubs] are not in 
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compliance with the Ordinance. Thus, Fort Wayne also believes 

the per se rule on preliminary injunctions should be invoked on 

[its] Motion.

CONCLUSIONS OF LAW

A. THE ORDINANCE IS NOT PRE-EMPTED UNDER I.C. 

§ 36-1-3-8(a)(7) OF THE HOME RULE ACT AS IT 

REGULATES CONDUCT THAT IS NOT REGULATED BY 

A STATE AGENCY

* * *

32. The Ordinance at issue does prohibit certain things that I.C.

§ 7.1 and the administrative code title pertaining to the Alcohol 

and Tobacco Commission addresses, but the Ordinance does not 

restrict the operation of the liquor retail permit holder’s business 

in any way with respect to the sale of alcohol or liquor, and the 

Ordinance does not affect the liquor permit itself. See O’Banion v. 

State, 253 N.E.2d 739 (Ind. [Ct.] App. 1969).

* * *

38. The Ordinance is, therefore, not an impermissible attempt by 

the [sic] Fort Wayne to regulate conduct regulated by the State 

and is not preempted under I.C. § 36-1-3-8(a)(7). The Ordinance 

does not regulate whether a sexually oriented business obtains a 

liquor permit nor does it place any requirements or limitations on 

the businesses’ sale of liquor. The Ordinance establishes

requirements for operating a sexually oriented business

specifically here, an adult cabaret, within Fort Wayne.

THE ORDINANCE IS NOT PRE-EMPTED UNDER THE 

HOME RULE ACT AS IT IS NOT AN ATTEMPT TO 

REGULATE AN AREA WHERE THE STATE ALREADY 

OCCUPIES THE FIELD
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39. “When a state statute totally preempts the field, a city may 

not further legislate therein and any attempt to impose 

regulations in conflict with rights granted or reserved by the 

legislature, such ordinances and regulations are invalid.” City of 

Indianapolis v. Fields, 506 N.E.2d 1128, 1131 (Ind. Ct. App. 1987).

40. As stated above, the State of Indiana has chosen not to

involve itself in the regulation of sexually oriented businesses.

Therefore, it cannot be said the state has totally preempted this 

field.

41. The Ordinance regulates sexually oriented businesses which 

is an area the State of Indiana has chosen not to occupy to the 

exclusion of municipal regulation. Therefore, the Ordinance is 

not an attempt to regulate an area occupied by the State of 

Indiana.

* * *

THE ORDINANCE IS CONSTITUTIONAL UNDER

JUSTICE KENNEDY’S CONCURRING OPINION IN 

ALAMEDA BOOKS

79. Justice Kennedy’s concurring opinion in Alameda Books

focused on whether the law, in its effort to reduce adverse 

secondary effects, does so by failing to leave the quantity and 

accessibility of speech substantially intact. A municipality’s 

rationale must be premised on the theory that it may reduce the 

costs of secondary effects without substantially reducing speech. 

City of Los Angeles v. Alameda Books, 535 U.S. 425, 450 (2002).

80. The Ordinance in this case requires the [Nightclubs] to 

remodel their interior businesses to comply with the requirement 

that all dance performances take place in a room that is at least 

six hundred (600) square feet and take place at least six (6) feet 

away from every patron in the premises.
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81. [The Nightclubs] claim that in order to comply with the

Ordinance, they would have to limit the areas available to

present performances and also the modifications would decrease 

the number of patrons who are able to view the constitutionally 

protected entertainment [the Nightclubs] present.

82. [The Nightclubs] allege the Ordinance improperly seeks to 

reduce secondary effects by reducing the constitutionally 

protected speech or the audience there to view the 

constitutionally protected speech.

83. Regulations that are adopted to address adverse secondary 

effects of sexually oriented businesses are constitutional if they 

are narrowly tailored to serve a substantial government interest 

and leave open adequate alternative avenues of communication. 

See City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986).

84. Least restrictive regulations are not required, but a 

governmental entity will satisfy the narrow tailoring requirement 

as long as [the] “regulation promotes a substantial government 

interest that would be achieved less effectively absent the 

regulation.” Ward v. Rock Against Racism, 491 U.8. 781, 798-99 

(1989).

85. The restrictions on sexually oriented businesses put in place 

by the Ordinance have the effect of reducing patron access to 

performers with the six (6) foot barrier and eliminate the ability 

to have the entertainers perform “lap dances” and other one-onone encounters in places such as VIP rooms. The Ordinance also 

imposes monitoring by management which is put in place to 

ensure patrons and employees are not engaging in any illegal 

activity such as the performance of lewd dances or other illegal 

sex acts.[]

86. The restrictions put in place are clearly premised on the 

theory that they may reduce the cost of secondary effects and 

were crafted in a way without substantially reducing the 
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constitutionally protected speech. Therefore[,] the Ordinance is 

constitutional.

H. [THE NIGHTCLUBS’] PETITION FOR [A] 

PRELIMINARY INJUCTION IS DENIED WITH RESPECT 

TO ALL FACTORS

87. [The Nightclubs] focus most of their argument on the 

position that they are likely to succeed on the merits of their

claims and because the enacting of the Ordinance was unlawful, 

it constitutes per se irreparable harm for purposes of a 

preliminary injunction analysis.

88. [The Nightclubs] have failed to establish that the enacting of 

the Ordinance was an unlawful act and, therefore, the per se test 

cannot be invoked. To obtain a preliminary injunction, [the 

Nightclubs] must show that their: 1) remedies at law are 

inadequate, thus causing irreparable harm pending resolution of 

the substantive action; 2) they have at least a reasonable 

likelihood of success at trial; 3) their threatened injury outweighs 

the potential harm to the City of Fort Wayne resulting in the 

granting of an injunction; and 4) the public interest would not be

disserved. [The Nightclubs] devote approximately one (1) page 

of their thirty-five (35) page brief to these “other factors favoring 

the issuance of an injunctive relief.” However[,] this issue can be 

determined by one factor.

89. As the Court has already set forth above, [the Nightclubs]

failed to establish they have a reasonable likelihood of success at 

trial as to whether the Ordinance is preempted by state law and is 

unconstitutional. As [the Nightclubs] have not shown a 

reasonable likelihood of success at trial this requirement in the 

analysis for granting a preliminary injunction has not been met.

90. If a movant fails to prove any of the requirements to obtain a

preliminary injunction, the trial court should deny the request for 
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a preliminary injunction. See Apple Glen Crossing, LLC v.

Trademark Retail, Inc., 784 N.E.2d 484, 487 (Ind. 2003). 

91. As [the Nightclubs] have failed to prove a reasonable 

likelihood of success at trial, their request for preliminary 

injunction is DENIED.

Id. at 50-71. This appeal ensued.

Discussion and Decision

Standard of Review

[9] The Nightclubs contend that the trial court erred when it denied their motion 

for a preliminary injunction.1

 Our standard of review is well settled:

“when reviewing findings of fact and conclusions of law entered 

upon the denial of a motion for preliminary injunction pursuant 

to Trial Rule 52(A)(1), we must determine if the trial court’s 

findings support its judgment and will reverse the judgment only 

when clearly erroneous. Oxford Fin’l Group, Ltd. v. Evans, 795 

N.E.2d 1135, 1141 (Ind. Ct. App. 2003). Findings of fact are 

clearly erroneous only when the record lacks any evidence or 

reasonable inferences therefrom to support them. U.S. Land 

Servs., Inc. v. U.S. Surveyor, Inc., 826 N.E.2d 49, 62 (Ind. Ct. App.

2005). The trial court’s judgment is clearly erroneous only if it is 

unsupported by the findings and the conclusions that rely upon 

those findings. N. Elec. Co., Inc. v. Torma, 819 N.E.2d 417, 421 

(Ind. Ct. App. 2004). We may neither reweigh the evidence nor 

1

 While the Nightclubs argue that the trial court erred when it denied their motion for a preliminary 

injunction, they do not present any argument on whether the court erred when it granted the City’s motion 

for a preliminary injunction. While those issues are two sides of the same coin, our analysis in this appeal is 

limited to whether the Nightclubs have shown that the trial court erred when it concluded that the Nightclubs 

are not likely to succeed at trial.
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reassess witness credibility. Oxford Fin’l, 795 N.E.2d at 1141. 

Additionally, even an erroneous finding is not fatal to a trial 

court’s judgment if the remaining valid findings and conclusions 

support the judgment, rendering the erroneous finding 

superfluous and harmless as a matter of law. Lakes & Rivers 

Transfer v. Rudolph Robinson Steel Co., 795 N.E.2d 1126, 1132 

(Ind. Ct. App. 2003).

Furthermore, [the Appellants are] appealing from a negative 

judgment and must, therefore, establish that the trial court’s 

judgment is contrary to law. N. Elec. Co., 819 N.E.2d at 421. A 

judgment is contrary to law only if the evidence in the record, 

along with all reasonable inferences, is without conflict and leads 

unerringly to a conclusion opposite that reached by the trial 

court. Id. We review conclusions of law de novo and give no 

deference to the trial court’s determinations about such 

questions. Id. at 422.

Curley v. Lake Cty. Bd. of Elections and Registration, 896 N.E.2d 24, 32 (Ind. Ct. 

App. 2008) (quoting M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1074-75 (Ind.

Ct. App. 2005)), trans. denied.

[10] As the trial court recognized, to obtain a preliminary injunction, the Nightclubs

had the burden of showing by a preponderance of the evidence that: (1) their 

remedies at law were inadequate, thus causing irreparable harm pending 

resolution of the substantive action; (2) they had at least a reasonable likelihood 

of success at trial by establishing a prima facie case; (3) the threatened injury to 

them outweighed the potential harm to the City resulting from the granting of 

an injunction; and (4) the public interest would not be disserved by the granting 
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of a preliminary injunction.2

 Id. at 32-33. If the party moving for an injunction 

fails to prove any of those four requirements, a grant of an injunction to that 

party is an abuse of discretion. Id. at 33. Stated another way, if, on appeal, the 

moving party cannot demonstrate that it proved each of those four requirements 

then the trial court’s denial of the movant’s request for an injunction must be 

affirmed. See id.

Issue One: Indiana Code Section 7.1-3-9-6

[11] The Nightclubs first contend that the trial court erred when it found that they 

are unlikely to succeed on the merits of their claim that the ordinance is 

prohibited by Indiana Code Section 7.1-3-9-6, which provides as follows:

(a) A city . . . shall not enact an ordinance . . . which in any way, 

directly or indirectly, regulates, restricts, enlarges, or limits the 

operation or business of the holder of a liquor retailer’s permit as 

provided in this title.

(b) A city . . . shall not enact an ordinance . . . covering any 

other business or place of business for the conduct of it in such a 

way as to prevent or inhibit the holder of a liquor retailer’s permit 

from being qualified to obtain or continue to hold the permit, or 

2

 The Nightclubs assert that they need not prove all four elements because the “per se rule” applies here. 

“The per se rule says that, ‘when the acts sought to be enjoined are unlawful, the plaintiff need not make a 

showing of irreparable harm or a balance of the hardship in his favor.’” Combs v. Daniels, 853 N.E.2d 156, 

160 (Ind. Ct. App. 2006) (quoting L.E. Servs., Inc. v. State Lottery Comm’n, 646 N.E.2d 334, 349 (Ind. Ct. App.

1995)). However, here, while the trial court applied the per se rule to the City’s motion for a preliminary 

injunction, the court did not apply it to the Nightclubs’ motion. And, on appeal, the Nightclubs do not 

contend that the trial court erred when it did not apply the per se rule to their motion.
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operate to interfere with or prevent the exercise of the permittee’s

privileges under the permit.

The Nightclubs maintain that the “expansive language” of this statute 

“emphatically communicate[s] a directive to interpret [it] liberally” to mean 

that, because the Nightclubs are permitted liquor retailers, the City cannot 

regulate its businesses “in any way.” Appellant’s Br. at 27.

[12] “‘Like statutes, ordinances are presumptively valid and the party challenging an 

ordinance bears the burden of proving invalidity.’” Town of Avon v. West Central 

Conserv. Dist., 957 N.E.2d 598, 607 (Ind. 2011) (quoting Hobble ex rel. Hobble v. 

Basham, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991)). As our Supreme Court has 

stated:

statutory interpretation is a question of law that we review de 

novo. In interpreting a statute, the first step is to determine 

whether the Legislature has spoken clearly and unambiguously 

on the point in question. When a statute is clear and 

unambiguous, we apply words and phrases in their plain, 

ordinary, and usual sense. When a statute is susceptible to more 

than one interpretation it is deemed ambiguous and thus open to 

judicial construction. When faced with an ambiguous statute, 

our primary goal is to determine, give effect to, and implement 

the intent of the Legislature with well-established rules of 

statutory construction. We examine the statute as a whole, 

reading its sections together so that no part is rendered 

meaningless if it can be harmonized with the remainder of the 

statute. And we do not presume that the Legislature intended 

language used in a statute to be applied illogically or to bring 

about an unjust or absurd result.
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Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (cleaned up).

[13] The Nightclubs assert that the statute is unambiguous and that, by its plain 

meaning, it prevents the kind of regulation established by the ordinance. The 

trial court, however, noted the “general purposes” of Title 7.1, which include in 

relevant part “[t]o regulate and limit the manufacture, sale, possession, and use 

of alcohol and alcoholic beverages.” I.C. § 7.1-1-1-1. The trial court found that

[t]he Ordinance at issue does prohibit certain things that I.C. § 

7.1 and the administrative code title pertaining to the Alcohol

and Tobacco Commission addresses, but the Ordinance does not 

restrict the operation of the liquor retail permit holder’s business 

in any way with respect to the sale of alcohol or liquor, and the 

Ordinance does not affect the liquor permit itself. See O’Banion v. 

State, [146 Ind. App. 223, ]253 N.E.2d 739 (Ind. [Ct.] App. 

1969).

Appellants’ App. Vol. 2 at 58. Thus, the trial court concluded that the 

ordinance is not invalid under Indiana Code Section 7.1-3-9-6.

[14] We agree with the trial court’s interpretation of Indiana Code Section 7.1-3-9-6. 

In O’Banion, we interpreted the predecessor statute as being “applicable only to 

the business of selling alcoholic beverages.” 253 N.E.2d at 745. We stated that

the zoning ordinance at issue in O’Banion was

not a regulation governing the sale of, the traffic in, or the 

transportation of, alcoholic beverages. It is not the levy of a tax 

or fee or license to permit the sale of alcoholic beverages. The 

ordinance does not in any way regulate, restrict, enlarge or limit 

the operation or business of the holder of a liquor retail permit or 

his privileges under such permit as prescribed by the Alcoholic 
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Beverage Act. The ordinance very simply covers the utilization 

of real property.

Id. Thus, we held that the zoning ordinance was not prohibited by the 

predecessor to Indiana Code Section 7.1-3-9-6. Id.

[15] Likewise, here, nothing in the ordinance either directly or indirectly regulates, 

restricts, enlarges, or limits the operation or business of the Nightclubs’ permits

to sell alcohol. We therefore hold that the ordinance does not violate Indiana 

Code Section 7.1-3-9-6. The trial court did not err when it concluded that the

Nightclubs have not shown a likelihood of success at trial on this issue.

Issue Two: Indiana Code Section 36-1-3-8(a)(7)

[16] The Nightclubs next contend that the ordinance is preempted by Indiana Code 

Section 36-1-3-8(a)(7) of the Home Rule Act, which provides that a unit of local 

government does not have “[t]he power to regulate conduct that is regulated by 

a state agency, except as expressly granted by statute.” The Nightclubs’ 

argument on this issue is two-fold. First, the Nightclubs reiterate their assertion

under Issue One that, because their businesses involve the sale of alcohol, only 

the State can regulate their businesses. For the same reasons set out above, the 

Nightclubs are incorrect. Second, the Nightclubs assert that, because the 

Alcohol and Tobacco Commission (“the ATC”) has enacted regulations that 

pertain to adult entertainment, the City may not also enact such regulations. In 

short, the Nightclubs maintain that the State has occupied the field with respect 

to regulating adult entertainment, including adult cabarets. We cannot agree.
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 20 of 28

[17] Under the Home Rule Act, the City

has “all powers granted it by statute; and . . . all other powers 

necessary or desirable in the conduct of its affairs, even though 

not granted by statute.” [I.C.] § 36-1-3-4(b). Moreover, any 

doubts about the existence of a particular power “shall be 

resolved in favor of its existence.” [I.C.] § 36-1-3-3(b).

Still, the Home Rule Act’s grant of authority is not unlimited. A 

unit’s power may only be exercised to the extent that it “is not 

expressly denied by the Indiana Constitution or by statute; 

and . . . is not expressly granted to another entity.” [I.C.] § 36-1-

3-5(a). Furthermore, a unit does not have the power “to impose 

duties on another political subdivision, except as expressly 

granted by statute,” nor may a unit “regulate conduct that is 

regulated by a state agency, except as expressly granted by 

statute.” [I.C.] § 36-1-3-8(a)(3), (a)(7). However, we have 

recognized that a “[s]trict interpretation of the limitation that a 

unit may not impose a duty on a political subdivision without 

express statutory authority” would lead to absurd results. City of 

Crown Point[v. Lake Cty., 510 N.E.2d 684, 686 (Ind. 1987)].

Town of Avon, 957 N.E.2d at 605.

[18] In Town of Avon, our Supreme Court addressed the issue of whether the State 

had “elected to occupy the field with respect” to the regulation of the 

withdrawal of underground water resources. 957 N.E.2d at 607. The Court 

noted that, “[w]hile [the State agency]’s statutory authority is extensive, . . . it 

by no means occupies the field with respect to the regulation of groundwater 

withdrawal.” Id. at 608. The Court then cited three statutes setting out various 

restrictions on groundwater withdrawal and observed that nothing in the 

statutes “indicate[d] that [the State agency] occupies the field with respect to 
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 21 of 28

withdrawal of groundwater, or that such an authority has been expressly 

granted to it.” Id. The Court concluded, “[w]e see no reason why Avon cannot 

regulate in those areas not within the scope of the [statutes] and, as discussed 

above, why Avon could not regulate in those areas within the scope of [the 

statutes]. Provided, of course, such regulations are not unreasonable or 

logically inconsistent.” Id.

[19] Here, in support of their contention that the State has occupied the field of adult 

entertainment regulation, the Nightclubs cite two sections of Title 905, Article 

1, Rule 16.1. The first section, 905 IAC § 1-16.1-1, provides that “[i]t is 

permissible for permittees to allow dancing upon their permit premise without 

the necessity of first obtaining a permit or other authorization from the alcohol 

and tobacco commission (commission). All floor plans must be approved by 

the commission.” And the second section, 905 IAC § 1-16.1-3, defines 

“nudity” and provides in relevant part that “[i]t is unlawful for a permittee to 

knowingly allow a person to engage in sexual intercourse, deviate sexual 

conduct, . . . to appear in a state of nudity[,] or to fondle the genitals of himself 

or another person while on the permittee’s licensed premises.”

[20] On this issue, the trial court concluded,

[t]he conduct regulated by the State pertains to those holding 

valid alcoholic beverage permits and is not specific regulation of 

sexually oriented businesses by a state agency. . . . The 

Ordinance is, therefore, not an impermissible attempt by Fort 

Wayne to regulate conduct regulated by the State and is not 

preempted under I.C. § 36-1-3-8(a)(7). The Ordinance does not 
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 22 of 28

regulate whether a sexually oriented business obtains a liquor 

permit nor does it place any requirements or limitations on the 

businesses’ sale of liquor. The Ordinance establishes

requirements for operating a sexually oriented business

specifically here, an adult cabaret, within Fort Wayne.

Appellants’ App. Vol. 2 at 59. The trial court recognized that, while the State 

has enacted laws pertaining to adult entertainment, the State “has chosen not to 

involve itself in the regulation of sexually oriented businesses. Therefore, it 

cannot be said the State has totally preempted this field.” Id. at 60.

[21] We agree with the trial court that nothing in the administrative code provisions 

cited by the Nightclubs indicate the State’s intent to occupy the field of the 

regulation of adult cabarets. While the State regulates some aspects of “adult 

entertainment” within the context of the sale of alcoholic beverages, the 

regulations cited by the Nightclubs merely prohibit nudity and require approval 

of floor plans for dancing. See 905 IAC § 1-16.1-1; 905 IAC § 1-16.1-3(a). The 

State has not expressly reserved the power to regulate adult cabarets, and 

nothing in the ordinance is unreasonable or logically inconsistent with the State 

regulations.

3

 See Town of Avon, 957 N.E.2d at 608.

[22] The Home Rule Act provides that “[a] unit may regulate conduct, or use or 

possession of property, that might endanger the public health, safety, or 

welfare.” I.C. § 36-8-2-4. The City enacted the ordinance in order to “protect 

3

 Both the ordinance and 905 IAC Section 1-16.1-3 prohibit nudity. And, while the ATC must approve a 

floor plan for dancing under 905 IAC Section 1-16.1-1, nothing in the ordinance conflicts with that authority.
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 23 of 28

and preserve the health, safety, and welfare” of both patrons of sexually 

oriented businesses and “citizens of the City[.]” Ex. 1 at 1. Because the State 

has not preempted the field of adult entertainment, the Nightclubs have not 

shown that the trial court erred when it concluded that they are not likely to 

succeed on the merits of this issue at trial.

Issue Three: Justice Kennedy’s Opinion in Alameda Books

[23] Finally, the Nightclubs contend that, “in its effort to reduce [the] adverse 

secondary effects [on society associated with adult cabarets, the ordinance] does 

so by failing to leave the quantity and accessibility of speech substantially 

intact,” in violation of the First Amendment to the United States Constitution. 

Appellants’ Br. at 50. In support, the Nightclubs rely exclusively on Justice 

Kennedy’s concurring opinion in City of Los Angeles v. Alameda Books, Inc., 535 

U.S. 425, 444 (2002) (Kennedy, J., concurring).

4

[24] In Alameda Books, the Court addressed a First Amendment challenge to a 

zoning ordinance that prohibited “more than one adult entertainment business 

in the same building” in an effort by Los Angeles to reduce crime associated 

with such businesses. 535 U.S. at 425. The Court, applying an intermediate 

scrutiny standard, reversed the grant of summary judgment in favor of the adult 

4

 The Nightclubs assert that because Justice Kennedy “provided the fifth vote for reversal,” his concurring 

opinion “constitutes the holding of the Court because it is the narrowest opinion joining the judgment.” 

Appellants’ Br. at 49 (citing Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 722 (7th Cir. 2003).
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 24 of 28

entertainment businesses on their motion for injunctive relief. Id. at 430. In his 

concurring opinion, Justice Kennedy wrote in relevant part as follows:

At the outset, we must identify the claim a city must make in 

order to justify a content-based zoning ordinance. As discussed 

above, a city must advance some basis to show that its regulation 

has the purpose and effect of suppressing secondary effects, while 

leaving the quantity and accessibility of speech substantially intact. The 

ordinance may identify the speech based on content, but only as 

a shorthand for identifying the secondary effects outside. A city 

may not assert that it will reduce secondary effects by reducing 

speech in the same proportion. . . . The rationale of the 

ordinance must be that it will suppress secondary effects—and 

not by suppressing speech.

* * *

The premise, therefore, must be that businesses—even those that 

have always been under one roof—will for the most part disperse 

rather than shut down. True, this premise has its own

conundrum. As Justice SOUTER writes[ in his dissenting 

opinion], “[t]he city . . . claims no interest in the proliferation of 

adult establishments.” Post, at 1748. The claim, therefore, must 

be that this ordinance will cause two businesses to split rather 

than one to close, that the quantity of speech will be substantially 

undiminished, and that total secondary effects will be 

significantly reduced. This must be the rationale of a dispersal 

statute.

Id. at 449-50 (Kennedy, J., concurring) (emphasis added). As the United States 

Court of Appeals for the Sixth Circuit has stated, “Justice Kennedy did not 

expand upon” the requirement that the quantity and accessibility of speech 

must be left intact “beyond noting that a state or municipality may not set out 
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 25 of 28

to reduce the secondary effects of adult speech by proportionally reducing the 

availability of the speech itself.” Entertainment Prods., Inc. v. Shelby Cty. Tenn., 

721 F.3d 729, 735 (6th Cir. 2013).

[25] On appeal, the Nightclubs do not challenge the trial court’s finding that the 

restrictions imposed by the ordinance are “clearly premised on the theory that 

they may reduce the costs of secondary effects” associated with adult 

entertainment. Appellants’ App. Vol. 2 at 69 (citing Ben’s Bar, Inc. v. Village of 

Somerset, 316 F.3d 702, 721 (7th Cir. 2003)). Rather, the Nightclubs contend 

only that the trial court erred when it found that the restrictions “were crafted in 

a way without substantially reducing the constitutionally protected speech.” Id.

at 69-70. The Nightclubs maintain that, in order “to comply with the 

requirements of the Ordinance, each of the Nightclubs must remove a 

substantial portion of its seating, and reduce the number of patrons who are 

able to view the constitutionally protected entertainment that they present.” 

Appellants’ Br. at 50. Thus, they assert, the ordinance does not leave the 

quantity and accessibility of their speech substantially intact.

[26] However, nothing in the ordinance restricts the size of the Nightclubs’ 

audiences. On its face, the ordinance does not impact the quantity or 

accessibility of their speech “by reducing speech or its audience.” Alameda 

Books, 535 U.S. at 450. The ordinance does not prohibit the Nightclubs either

from relocating to larger venues or remodeling their existing venues to 

accommodate the same number of customers under the ordinance.
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 26 of 28

[27] In his concurring opinion in Alameda Books, Justice Kennedy expressly 

contemplated that some of the businesses impacted by the zoning ordinance 

might have to relocate. In particular, he stated, “[i]f two adult businesses are 

under the same roof, an ordinance requiring them to separate will have one of 

two results: One business will either move elsewhere or close. The city’s 

premise cannot be the latter.” Id. at 450-51. And he acknowledged that 

“dispersing two adult businesses under one roof is reasonably likely to cause a 

substantial reduction in secondary effects while reducing speech very little.” Id. at 

453 (emphasis added).

[28] Justice’s Kennedy’s opinion states succinctly that “a city may not attack 

secondary effects indirectly by attacking speech.” Id. at 450. But, again, his 

analysis also recognizes that, in order to preserve the quantity and accessibility 

of the protected speech, a business may need to relocate. In other words, in 

Alameda Books where the ordinance at issue was a dispersal ordinance, to 

require a business to disperse was not per se an indirect attack on speech.

[29] The same analysis applies here. In order for the Nightclubs to comply with the 

ordinance, they may be required to provide more space to accommodate the 

same number of patrons, but that in itself does not amount to an indirect attack 

on constitutionally protected entertainment. On appeal, the Nightclubs 

contend that the ordinance “does not pass muster under Justice Kennedy’s test” 

in Alameda Books simply because, they allege, the ordinance requires that each 

of the Nightclubs “remove a substantial portion of its seating, and reduce the 

number of patrons.” Appellants’ Br. at 50. But the Nightclubs’ argument stops
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 27 of 28

short and does not address the part of Justice’s Kennedy’s opinion that makes 

clear that an ordinance may, in its operation and effect, require a business to 

relocate or expand the size of an existing venue without impairing 

constitutionally protected speech.

5

[30] We hold that the trial court did not err when it concluded that the Nightclubs 

did not show a likelihood of success at trial on their claim that the ordinance 

violates their First Amendment rights as set out in Justice Kennedy’s 

concurring opinion in Alameda Books.

Conclusion

[31] In their motion for a preliminary injunction, the Nightclubs had the burden of 

showing by a preponderance of the evidence that: (1) their remedies at law 

were inadequate, thus causing irreparable harm pending resolution of the 

substantive action; (2) they had at least a reasonable likelihood of success at 

trial by establishing a prima facie case; (3) the threatened injury to them 

outweighed the potential harm to the City resulting from the granting of an 

injunction; and (4) the public interest would not be disserved by the granting of 

a preliminary injunction. Curley, 896 N.E.2d at 32-33. The trial court 

concluded that the Nightclubs have not shown a reasonable likelihood of 

success on their claims at trial, and we agree. Accordingly, we need not address 

the Nightclubs’ perfunctory arguments on the other three elements they were 

5

 Justice Kennedy’s concurring opinion is notably silent regarding the potential costs of relocation.
Court of Appeals of Indiana | Opinion 20A-MI-466 | October 29, 2020 Page 28 of 28

required to prove. The trial court did not err when it denied the Nightclubs’ 

motion for a preliminary injunction against the City.

[32] Affirmed.

Bradford, C.J., and Mathias, J., concur.