UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

BBL, INC., ALVA J. BUTLER, AND 

SANDRA K. BUTLER, 

 PLAINTIFFS, 

 VS. 

CITY OF ANGOLA, DEAN

TWITCHELL, IN HIS OFFICIAL 

CAPACITY, AND VIVIAN LIKES, IN HER 

INDIVIDUAL CAPACITY, 

 DEFENDANTS. 

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CAUSE NO. 1:13-CV-76-RLM-RBC 

OPINION and ORDER 

Plaintiffs BBL, Inc., Alva J. Butler, and Sandra K. Butler seek a 

preliminary injunction to enjoin defendants City of Angola, Dean Twitchell, and 

Vivian Likes from enforcing several City of Angola ordinances against BBL’s 

Showgirl property. Angola moves for summary judgment on BBL’s claim that 

Angola didn’t provide a constitutionally sufficient number of adequate 

alternative sites and for judgment on the pleadings on the plaintiffs’ additional 

claims. 

I. BACKGROUND

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 For the preliminary injunction and summary judgment motions, the 

court reviewed evidence presented at the preliminary injunction hearing and 

submitted by the parties, including exhibits attached to the pleadings and the 

various motions, responses, and replies. The evidence the court reviewed for 

the motion for judgment on the pleadings was more restricted. The evidence 

scattered about the record provides the following factual background. 

 BBL seeks to open a sexually oriented business called Showgirl at 310 

West Wendell Jacob Avenue in Angola, Indiana. Showgirl will be a venue that 

serves food and beverages and presents minimally clothed female performance 

entertainment. When BBL purchased the property, Angola’s Unified 

Development Ordinance sections 2.35 and 2.41 allowed sexually oriented 

businesses within Medium to Large General Commercial (C2) Districts and 

prohibited sexually oriented businesses within Moderate Intensity Industrial 

(I2) Districts. Section 5.66 required sexually oriented businesses to obtain an 

improvement location permit, to be at least 1,000 feet from “residential zoning 

districts,” and to be at least 1,000 feet away from public gathering places, such 

as schools, parks, libraries, and day-care centers. Sections 2.35, 2.41, and 

5.66 were later modified. Section 9.05 has remained unchanged and requires 

any property owner who alters an existing structure or changes an existing use 

of property to obtain an improvement location permit. 

 In August 2012, before BBL closed on the property, its attorney 

contacted Zoning Administrator Vivian Likes to verify that the premises met the 

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legal requirements for a sexually oriented business. Ms. Likes responded with a 

letter that concluded that the Wendell Jacob Avenue site couldn’t be used for a 

sexually oriented business because a public gathering place was to be built 

within 1,000 feet of the premises. BBL disagreed with Ms. Likes’ assessment, 

and BBL closed on the sale of the premises on September 11, 2012. 

 Mr. Butler says renovations began immediately, including resurfacing the 

parking lot, re-roofing the building, and other miscellaneous maintenance. Mr. 

Butler and his son James Butler maintain that Building Commissioner Dean 

Twitchell orally permitted any construction on the premises. Mr. Butler claims 

he invested at least $456,222.40 in the project, including $175,000 for the 

property, $90,000 for the front lot, and $85,000 for the liquor license. 

On September 17, 2012, the Angola Common Council adopted Angola 

Ordinance 1418-2012, An Ordinance Establishing Licensing Requirements and 

Regulations for Sexually Oriented Businesses within the City of Angola, Indiana. 

The ordinance regulated several aspects of sexually oriented businesses, 

including a license requirement and hours of operation, and made it “unlawful 

to establish, operate, or cause to be operated a sexually oriented business in 

the City of Angola, unless the sexually oriented business is at least 750 feet 

from every residence.” 

 Building Commissioner Twitchell says he didn’t visit the property until 

September 20, when he told Mr. Butler that installing new roofing material and 

demolition of interior, non-load-bearing walls didn’t require a permit. Mr. 

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Twitchell claims that he didn’t approve or disapprove Mr. Butler taking such 

actions. Mr. Twitchell also says he spoke with Mr. Butler about the 

construction approval process from the State of Indiana and City of Angola 

regarding interior construction and told Mr. Butler that he might need an 

improvement location permit for improvements to the parking lot. During the 

September 20 visit, Mr. Twitchell says he saw no past or present improvements 

to the roof of the building and no work had been done to improve the parking 

lot. 

 Mr. Twitchell visited the Showgirl premises again on October 1, 2012, 

and saw that workers had removed a wallboard and several studs from a load 

bearing wall at the east side of the banquet room and were constructing a new 

partition wall in the kitchen area. According to Mr. Twitchell, both a 

construction design release from the State of Indiana and a building permit 

from the City of Angola were required to perform this construction lawfully. The 

parties dispute when and how Mr. Twitchell told BBL to stop work on the 

premises until the appropriate permits were obtained, but the construction 

stopped at some point around this time. 

 BBL applied for a construction design release from the State of Indiana 

on October 18, 2012. BBL filed applications for a license to operate a sexually 

oriented business and for an improvement location permit from the City of 

Angola on November 7, 2012. The State granted the construction design 

release for the Showgirl premises on November 15, 2012. According to Mr. 

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Twitchell, as of September 18, 2013, BBL hadn’t applied for a building permit 

from the City of Angola. 

 The Angola Common Council adopted Angola Ordinance 1425-2012, An 

Ordinance Amending the Unified Development Ordinance With Respect to the 

Regulation of Sexually Oriented Businesses, on November 19, 2012. The 

ordinance amended Angola’s Unified Development Ordinance and removed 

sexually oriented businesses from the types of businesses allowed in C2 

Districts and added them as a type of business permitted in I2 Districts. BBL’s 

property is located in a C2 district. The amendments also prohibit sexually 

oriented businesses within 750 feet of residences and within 1,000 feet of 

residential districts, public gathering places, and other sexually oriented 

businesses. 

 In late November 2012, Building Commissioner Twitchell issued a 

written notice of intent to deny Showgirl’s sexually oriented business license 

application based on the 750 feet residential buffer. On December 3, 2012, 

Zoning Administrator Likes sent Showgirl’s attorney a letter in which she 

communicated: (1) multiple reasons the improvement location permit 

application was incomplete; (2) the proposed application didn’t comply with 

Ordinance 1418-2012 because the business was within 750 feet of parcels 

containing residences; and (3) the improvement location permit sought under 

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the Unified Development Ordinance would be denied, even if the application 

was complete. 

 BBL appealed the written notice of intent to deny the application for a 

sexually oriented business license, and a hearing was held before Hearing 

Officer James A. McEntarfer. On February 17, 2013, Mr. McEntarfer issued a 

decision denying Showgirl’s sexually oriented business license based on his 

findings that (i) the Common Council denied the licensing and regulatory 

ordinance after considering evidence of the negative secondary effects of 

sexually oriented businesses on surrounding properties, (ii) BBL didn’t have a 

pre-existing use or vested right in the property prior to the adoption of the 

licensing and regulatory ordinance, (iii) the property didn’t comply with the 750 

feet buffer, and (iv) the City properly denied the application. BBL filed this suit 

alleging several violations of Indiana law and the First and Fourteenth 

Amendments to the United States Constitution. 

II. MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

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The defendants move for judgment on the pleadings on all of BBL’s 

claims except the claim about the constitutional adequacy of the alternative 

sites. 

A. Legal Standard 

 A party may move for judgment on the pleadings after the pleadings are 

closed. FED. R. CIV. P. 12(C). A motion for judgment on the pleadings is reviewed 

under the same standard as a Rule 12(b)(6) motion to dismiss for failure to 

state a claim. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th 

Cir. 2009). The court accepts all well pleaded factual allegations as true and 

construes all reasonable inferences in the non-moving party’s favor. Scherr v. 

Marriott Int’l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). The court can 

consider the complaint and any attached written instruments, FED. R. CIV. P. 

10(c), and documents that are referred to in the pleadings and central to the 

claim. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The court 

considered the complaint and the following attached documents: copies of the 

ordinances at issue, a copy of Ms. Likes’ December 3, 2012 letter, BBL’s 

improvement location permit application, and BBL’s construction design 

release application. The court also considered the following documents that are 

referred to in the pleadings and central to the claim: the legislative secondary 

effects documents that were attached to the answer, a copy of § 5.66 of the 

Angola Unified Development Ordinance that was attached to BBL’s response to 

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the motion for judgment on the pleadings, and Mr. Butler’s affidavit that was 

attached to BBL’s motion for preliminary injunction. The complaint must set 

“forth facts sufficient to support a cognizable legal theory.” Scherr v. Marriott 

Int’l, Inc., 703 F.3d at 1073. Judgment should be granted “only if it appears 

beyond doubt that the plaintiff cannot prove any facts that would support his 

claim for relief.” Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d at 827. 

B. Ordinance 1418-2012, the Licensing and Regulatory Ordinance 

Licensing or Zoning Ordinance 

BBL alleges in Count 1 of the complaint that the licensing and regulatory 

ordinance was, in substance, a zoning ordinance and so should have been 

adopted pursuant to Indiana Code § 36-7-4-602(b). Because the ordinance’s 

enactment didn’t comply with the statute, BBL contends, the ordinance is 

invalid. Angola argues the ordinance was a licensing ordinance under Indiana 

law, not a zoning ordinance, and was properly enacted. The City doesn’t 

challenge BBL’s assertion that the ordinance wasn’t enacted according to the 

statutory procedure required for a zoning ordinance. Angola contends that the 

licensing and regulatory ordinance isn’t a zoning ordinance because it doesn’t 

divide the land into zoning districts or regulate by districts. 

In Uniontown Retail #36, LLC v. Board of Comm’rs of Jackson Cnty., the 

county adopted an ordinance that required sexually oriented businesses to 

obtain a license and prohibited a sexually oriented business from operating 

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within 1,000 feet of a residence. 950 N.E.2d 332, 335 (Ind. Ct. App. 2011). The 

court of appeals examined the ordinance’s title, stated purpose, and content 

and concluded that the ordinance was a properly enacted licensing ordinance 

that the county enacted “in the exercise of its broad home rule authority to 

regulate conduct, or use or possession of property, that might endanger the 

public health, safety, or welfare as authorized by [Indiana Code] § 36-8-2-4.” 

Uniontown Retail v. Comm’rs, 950 N.E.2d at 338. The facts of this case mirror 

those present in Uniontown Retail. The twenty-four page Angola Ordinance 

1418-2012 is titled, An Ordinance Establishing Licensing Requirements and 

Regulations for Sexually Oriented Businesses within the City of Angola, Indiana. 

The twenty-six page Uniontown Retail ordinance was titled Sexually Oriented 

Business Ordinance. 950 N.E.2d at 334. The purposes of the ordinances are 

nearly identical. The Angola ordinance’s purpose begins: 

It is the purpose of this ordinance to regulate sexually oriented 

businesses in order to promote the health, safety, and general 

welfare of the citizens of the City, and to establish reasonable and 

uniform regulations to prevent the deleterious secondary effects of 

sexually oriented businesses within the City. 

The Uniontown Retail ordinance’s first purpose was: 

to regulate sexually oriented businesses in order to promote the 

health, safety and general welfare of the citizens of Jackson 

County, and to establish reasonable and uniform regulations to 

prevent the deleterious secondary effects of sexually oriented 

businesses within unincorporated areas of Jackson County. 

 

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950 N.E.2d at 334. The Angola ordinance contains the Common Council’s 

findings that: 

(1) Sexually oriented businesses, as a category of commercial uses, 

are associated with a wide variety of adverse secondary effects 

including, but not limited to, personal and property crimes, 

prostitution, potential spread of disease, lewdness, public 

indecency, obscenity, illicit drug use and drug trafficking, negative 

impacts on surrounding properties, urban blight, litter, and sexual 

assault and exploitation. 

(2) Sexually oriented businesses should be separated from 

sensitive land uses to minimize the impact of their secondary 

effects upon such uses, and should be separated from other 

sexually oriented businesses, to minimize the secondary effects 

associated with such uses and to prevent an unnecessary 

concentration of sexually oriented businesses in one area. 

(3) Each of the foregoing negative secondary effects constitutes a 

harm which the City has a substantial government interest in 

preventing and/or abating. . . . 

The Uniontown Retail ordinance contained similar findings: 

(2) Sexually oriented businesses should be segregated from one 

another and from religious institutions, school, parks, residences 

and residential neighborhoods to protect the public health, welfare 

and safety because sexually oriented businesses, as a category of 

commercial uses, are associated with a wide variety of adverse 

secondary effects, including but not limited to, personal and 

property crimes, prostitution, potential spread of disease, 

lewdness, public indecency, illicit drug use, drug trafficking, illicit 

and unsanitary sexual activity, negative impacts on property 

values, blight, litter, and sexual assault and exploitation. 

(3) Each of the foregoing negative secondary effects constitutes a 

harm which Jackson County has a substantial governmental 

interest in abating and/or preventing in the future. 

950 N.E.2d at 334-335. The Angola ordinance’s operative effect is to require 

sexually oriented businesses to obtain a license and prohibits their operation 

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within 750 feet of a residence. The Uniontown Retail ordinance’s effect was the 

same, except the distance requirement was 1,000 feet. Id. at 335. Like the 

Uniontown Retail ordinance, the Angola ordinance also contains provisions 

regarding the licensing, inspection, and hours of operation of sexually oriented 

businesses. 

 Angola Ordinance 1425-2012, which amended the City’s Unified 

Development Ordinance, changed the type of district in which sexually oriented 

businesses were permitted from I2 Districts to C2 Districts. Ordinance 1425-

2012 also requires sexually oriented businesses to be separated from 

residential zoning districts and public gathering places by at least 1,000 feet 

and from residences by at least 750 feet. Similarly, a subsequent ordinance in 

Uniontown Retail specified that a sexually oriented business was a permitted 

use in certain districts and barred a sexually oriented business from being 

located within 1,000 feet of any residence. 950 N.E.2d at 335. The Uniontown 

Retail court distinguished the earlier ordinances with only the residential 

buffer requirement from the subsequent ordinance that changed the districts 

because the later ordinance defined “where a sexually oriented business could

be located.” Id. The court found the earlier licensing ordinances “do not specify 

zones, districts, or areas where sexually oriented are allowed, or the 

‘quintessential zoning’ matters of ‘what type of land use was allowed and 

where.’” Id. at 338. 

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BBL argues that the ordinance is a zoning measure because it dictates 

what type of land use is permitted and where. BBL claims the court of appeals’ 

Uniontown Retail decision conflicts with the decision of the Indiana Supreme 

Court in City of Carmel v. Martin Marietta Materials, Inc. because an ordinance 

with a residential buffer “dictate[s] what type of land use is permitted and 

where.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 787 

(Ind. 2008). The Uniontown Retail court analyzed City of Carmel and 

distinguished between ordinances that permit and ordinances that prohibit. 

Uniontown Retail, 950 N.E.2d at 337-338. An ordinance affecting the districts 

where a business is allowed to locate dictates what type of land use is 

permitted. An ordinance that simply prohibits a business from operating within 

a certain distance from a residence doesn’t dictate what type of land use is 

permitted. The distinction might be a brittle one, but the similarities between 

the Uniontown Retail and Angola ordinances are remarkable. Angola Ordinance 

1418-2012 doesn’t specify the districts where sexually oriented businesses are 

allowed and so, isn’t a zoning ordinance under Indiana law. The ordinance 

didn’t have to be enacted pursuant to the statutory procedure for zoning 

ordinances. The defendants are entitled to judgment on this claim. 

Administrative Appeal Provisions 

 The second count of the complaint alleges that the suspension, 

revocation, and appeal provisions of the licensing and regulatory ordinance 

violate Indiana Code §§ 36-1-6-9 and 36-7-4-918.1. The parties don’t dispute 

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any of the facts relating to this claim. Angola first argues that BBL lacks 

standing to challenge the suspension, section eight, and revocation, section 

nine, provisions of the ordinance. Angola says because Showgirl was denied a 

sexually oriented business license, it has no license that could be suspended or 

revoked. BBL doesn’t respond to this issue. BBL hasn’t sustained, and isn’t in 

immediate danger of sustaining, an injury from the suspension and revocation 

provisions, and the court agrees that BBL doesn’t have standing to challenge 

those two sections. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 

(1992); Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995). 

 Section ten of the licensing and regulatory ordinance defines appellate 

procedures relating to the denial, suspension, or revocation of a sexually 

oriented business license. Under section ten, if the Building Commissioner 

issues a written notice of intent to deny, suspend, or revoke a license, the 

denial, suspension, or revocation becomes a final decision if the party doesn’t 

request a hearing within ten days after delivery of the notice. If the party timely 

requests a hearing, the City will hold a hearing at which the aggrieved party 

can be represented by counsel and present argument, evidence, and witnesses. 

At the hearing, the Building Commissioner bears the burden of proving 

grounds for denying, suspending, or revoking the license. 

 Angola argues that cities have a broad home rule authority to adopt 

licensing regulations for the operation of businesses such as sexually oriented 

businesses, and that Indiana courts have upheld similar ordinances. Angola 

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cites cases that address ordinances regulating sexually oriented businesses, 

but those cases don’t analyze provisions of the ordinances specifying the 

appeal procedure when a license is denied. See Uniontown Retail #36, LLC v. 

Board of Comm’rs of Jackson Cnty., 950 N.E.2d 332, 335 (Ind. Ct. App. 2011) 

(sexually oriented business required to obtain a license and prohibited from 

operating within 1,000 feet of a residence); Plaza Grp. Props., LLC v. Spencer 

Cnty. Plan Comm’n, 877 N.E.2d 877, 881 (Ind. Ct. App. 2007) (sexually 

oriented business required to obtain a license and prohibited from operating 

within 1,000 feet of a residence); Andy’s Rest. & Lounge, Inc. v. City of Gary, 

466 F.3d 550, 552 (7th Cir. 2006) (license, hours of operation, and open-booth 

requirement for sexually oriented businesses). Further, none of the cited cases 

analyze Indiana Code § 36-1-6-9 or § 36-7-4-918.1. Uniontown Retail #36, LLC 

v. Board of Comm’rs of Jackson Cnty., 950 N.E.2d at 334 (improperly enacted 

zoning ordinance, nonconforming use, First Amendment); Plaza Grp. Props., 

LLC v. Spencer Cnty. Plan Comm’n, 877 N.E.2d at 879-880 (nonconforming 

use, First Amendment); Andy’s Rest. & Lounge, Inc. v. City of Gary, 466 F.3d at 

552 (First Amendment). Only Uniontown Retail analyzes the home rule 

authority, but it does so in the context of the residential buffer in a licensing 

ordinance. 950 N.E.2d 332, 338 (Ind. Ct. App. 2011). Pursuant to the 

ordinance in Andy’s Restaurant & Lounge, “[d]enial, suspension, or revocation 

of a license only occur[ed] after a hearing at which the aggrieved party [had] the 

opportunity to be heard.” 466 F.3d 550, 552 (7th Cir. 2006). If the result of 

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that hearing was an adverse action, the party could appeal to a court of 

competent jurisdiction. Id. The Angola ordinance has a similar hearing aspect, 

but Andy’s Restaurant & Lounge didn’t analyze the provision beyond a cursory 

mention in the fact summary. 

 BBL contends that under Indiana Code § 36-1-6-9, Angola can’t enforce 

the ordinance through an administrative hearing. Indiana Code § 36-1-6-9 

subsections (a) through (c) provide that: 

(a) The legislative body of a county or municipality may adopt an 

ordinance providing that certain other ordinances may be enforced 

through a proceeding before an administrative body of the county 

or municipality. 

(b) An ordinance adopted under subsection (a) must designate the 

following: 

 (1) The ordinances that may be enforced through an 

 administrative proceeding. 

 (2) The administrative body before which the proceeding may 

 be brought. 

(c) An ordinance may not be designated under subsection (b) for 

enforcement through an administrative proceeding unless the 

ordinance restricts or prohibits actions harmful to the land, air, or 

water, governs use of the public way, or governs the standing or 

parking of vehicles. 

IND. CODE § 36-1-6-9. Angola first argues that Indiana Code § 36-1-6-9 doesn’t 

apply to a licensing ordinance that doesn’t impose a fine for violations. 

Pursuant to Indiana Code § 36-1-6-9(d)(2), an administrative body enforcing an 

ordinance through a proceeding designated under subsection (b) “may not 

impose a penalty other than a fine in an amount within the limit set forth in 

[Indiana Code §] 36-1-3-8(10).” IND. CODE § 36-1-6-9. Angola claims the 

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licensing and regulatory ordinance doesn’t impose a fine, and if the penalty for 

violating an ordinance is anything other than a fine, Indiana Code § 36-1-6-9 

doesn’t apply. But an ordinance that falls within the requirements of the 

statute – found in subsections (a), (b), and (c) – can impose a fine, and only a 

fine, as the penalty for violations of the ordinance. The statute doesn’t require 

that a fine be imposed as a penalty for violating such an ordinance, 

presumably no penalty would be acceptable. BBL claims the Angola ordinance 

does impose a penalty of license denial, suspension, or revocation, and a 

business seeking a license to operate is penalized by denial, suspension, or 

revocation of a license. 

 BBL reads subsection (c) as limiting administrative review to ordinances 

that restrict or prohibit actions harmful to the land, air, or water, that govern 

the use of the public way, or that govern the standing or parking of vehicles. 

The regulation of sexually oriented businesses doesn’t fall within any of these 

categories, so BBL concludes the ordinance can’t be enforced through an 

administrative body. BBL cites no case law to support its contention and, 

indeed, the court was unable to find any cases that interpret the code section. 

The court agrees that an ordinance regulating sexually oriented businesses 

doesn’t fall within the categories specified in Indiana Code § 36-1-6-9(c), but 

whether the ordinance is enforced through an administrative proceeding 

deserves further analysis. 

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 Title 36 of the Indiana Code doesn’t define the terms “administrative 

body” and “administrative proceeding.” Pursuant to section ten of the 

ordinance, upon the Building Commissioner’s written notice of intent to deny, 

suspend, or revoke a license, the party seeking the license has ten days to 

request a hearing that will then be held within approximately thirty days. At 

the hearing, the aggrieved party has the opportunity to be represented by 

counsel and present argument, evidence, and witnesses. The Building 

Commissioner bears the burden of proving grounds for denying, suspending, or 

revoking the license. The decision-maker is the Hearing Officer who “shall issue 

a final written decision, including specific reasons for the decision pursuant to 

this ordinance, to the respondent within five (5) days after the hearing.” The 

ordinance doesn’t identify the Hearing Officer or describe his or her 

qualifications or relationship to the Building Commissioner or the City of 

Angola. Angola claims Indiana Code § 36-1-6-9 is permissive, not mandatory, 

and a city can adopt an ordinance for enforcing certain ordinances through 

administrative proceedings, but isn’t required to do so. Nevertheless, this 

scenario walks and quacks like an administrative proceeding. 

 But if the party seeking the license doesn’t request a hearing, the 

Building Commissioner’s written notice of intent to deny, suspend, or revoke a 

license becomes a final decision on the thirtieth day after it is issued; that 

decision is subject to judicial review. The party challenging the Building 

Commissioner’s decision, therefore, isn’t compelled to take part in an 

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administrative proceeding before seeking judicial review. The party can simply 

forgo the hearing and wait thirty days for the decision to become final. 

Consequently, the licensing and regulatory ordinance doesn’t violate Indiana 

Code § 36-1-6-9. 

 BBL also argues that the licensing and regulatory ordinance is a zoning 

ordinance, so the provision that allows the appeal of license decisions to a 

hearing officer violates Indiana Code § 36-7-4-918.1(1), which requires the 

board of zoning appeals to review an administrative official’s decision under a 

zoning ordinance. As discussed earlier, Angola Ordinance 1418-2012 doesn’t 

specify the districts where sexually oriented businesses are allowed and isn’t a 

zoning ordinance. Accordingly, licensing decisions aren’t made pursuant to a 

zoning ordinance or subject to Indiana Code § 36-7-4-918.1(1). The defendants 

are entitled to judgment because the appeal provision of the licensing and 

regulatory ordinance doesn’t violate either Indiana Code § 36-1-6-9 or § 36-7-

4-918.1. 

Indiana Liquor Laws 

 In Count 3 of the complaint, BBL alleges the licensing and regulatory 

ordinance violates Indiana Code § 7.1-3-9-6, which proscribes local ordinances 

from preempting state liquor laws. Angola responds that the ordinance doesn’t 

mention or regulate alcohol or liquor and so doesn’t violate the statute. None of 

the facts relating to this claim are disputed by the parties. 

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 Angola argues that the regulation of sexually oriented businesses has 

traditionally been a local matter in Indiana and is an area that the state hasn’t 

chosen to occupy to the exclusion of municipal regulation. The Uniontown 

Retail court held that the sexually oriented business licensing ordinance was 

enacted by the county “in the exercise of its broad home rule ‘authority to 

regulate conduct, or use or possession of property, that might endanger the 

public health, safety, or welfare,’ as authorized by” the Indiana statute that 

permits local government units the authority to regulate dangerous conduct or 

property. 950 N.E.2d 332, 338 (Ind. Ct. App. 2011). The Home Rule Act grants 

local government units “all the powers that they need for the effective operation 

of government as to local affairs,” but the Act doesn’t grant unlimited powers to 

local units. Fort Wayne Women’s Health v. Board of Comm’rs, Allen Cnty., Ind., 

735 F. Supp. 2d 1045, 1051 (N.D. Ind. 2010) (quoting IND. CODE § 36-1-3-2). 

Under Indiana law, an ordinance impermissibly conflicts with a statute if the 

ordinance “prohibit[s] that which a statute expressly permits.” City of 

Indianapolis v. Clint’s Wrecker Serv., Inc., 440 N.E.2d 737, 746 (Ind. Ct. App. 

1982). “If the state has not chosen to occupy an area to the exclusion of 

municipal regulation, the City may impose additional, reasonable regulations, 

and may supplement burdens imposed by non-penal state law, provided the 

additional burdens are logically consistent with the statutory purpose.” Id. at 

746-747. The Home Rule Act denies local units “[t]he power to regulate conduct 

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that is regulated by a state agency, except as expressly granted by statute.” 

IND. CODE § 36-1-3-8(a)(7). 

 Angola Ordinance 1418-2012 establishes licensing requirements and 

regulations for sexually oriented businesses located within the City of Angola. 

Pursuant to the ordinance, sexually oriented businesses must obtain a license 

to operate in the City, must monitor the premises to prevent loitering, and can’t 

operate within 750 feet of a residence. The ordinance imposes restrictions on 

the hours of operation and the exhibition of sexual films. Prohibited conduct at 

a sexually oriented business under the ordinance includes nudity, engaging in 

sexual activity, or touching a customer. Semi-nude employees must remain six 

feet from all patrons and on a stage that is at least eighteen inches from the 

floor in a room of at least 600 square feet. 

 In its complaint, BBL alleges that the licensing and regulatory ordinance 

violates Indiana Code § 7.1-3-9-6, which states: 

A city or town 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. A city or town 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 operate to interfere with or prevent the exercise of 

the permittee’s privileges under the permit. 

IND. CODE § 7.1-3-9-6. BBL claims the Angola ordinance restricts a liquor 

retailer permit holder from presenting female performance entertainment 

protected by the First Amendment, when, where, and how a liquor retailer 

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permit holder may operate, and who may be a liquor retailer permit holder. In 

response to the motion for judgment on the pleadings, BBL also claims the 

ordinance conflicts with another Indiana statute and two administrative code 

sections. BBL claims the ordinance violates Indiana Code § 7.1-3-1-14, that 

allows alcohol serving businesses to stay open later, 3:00 a.m., than the 

ordinance, midnight. The ordinance also restricts the conduct of the dancers 

more than section three of Rule 16.1 regarding the restrictions on nudity in 

exhibition or professional dancing found in the Alcohol and Tobacco 

Commission Title of the Indiana Administrative Code that prohibits “a 

permittee [from] knowingly allow[ing] a person to engage in sexual intercourse, 

deviate sexual conduct, as defined in [Indiana Code §] 35, to appear in a state 

of nudity or to fondle the genitals of himself or another person while on the 

permittee’s licensed premises.” 905 IND. ADMIN. CODE 1-16.1-3. Finally, BBL 

claims the ordinance restricts the layout of the premises, but the Alcohol and 

Tobacco Commission must approve floor plans for liquor retailer permit holders 

that allow dancing on the premises. 905 IND. ADMIN. CODE 1-16.1-1. 

 Angola argues the licensing and regulatory ordinance doesn’t regulate 

alcohol or liquor and makes no reference to liquor retailer permit holders. To be 

precise, the ordinance prohibits certain things the cited statute and 

administrative code sections allow. City of Indianapolis v. Clint’s Wrecker Serv., 

Inc., 440 N.E.2d 737, 746 (Ind. Ct. App. 1982). For example, Indiana Code § 

7.1-3-1-14 allows liquor retailer permit holders to stay open later, and under 

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the Alcohol and Tobacco Commission administrative code sections, a dancer on 

liquor retailer permit holders’ premises may touch customers. But the Angola 

ordinance regulates sexually oriented businesses, not liquor retailer permit 

holders. The sexually oriented business here just happens to also hold a liquor 

retailer permit. 

 In O’Banion v. State ex rel. Shively, 253 N.E.2d 739 (Ind. App. 1969), the 

court of appeals upheld a county ordinance that allowed businesses in a zoning 

district to sell alcoholic beverages only if the business obtained the approval of 

the county board of zoning appeals. The appellant argued that the ordinance 

was preempted by the Alcoholic Beverage Act of 1935 that stated: “No 

ordinance of any city or town shall in any way regulate, restrict, enlarge or limit 

the operation or business of the holder of any liquor retail permit or his 

privileges under such permit as prescribed by this act, directly or indirectly . . . 

.” O’Banion v. State, 253 N.E.2d at 744. Today’s Indiana Code § 7.1-3-9-6 

mirrors that language. The O’Banion court found the local ordinance regulated 

the use of real property, while the state alcoholic beverage statutes regulated 

the sale of alcohol. O’Banion v. State, 253 N.E.2d at 742. The ordinance didn’t 

“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 

statute],” and the ordinance wasn’t inconsistent with the purpose of the 

statute. O’Banion v. State, 253 N.E.2d at 745. BBL argues that it only 

challenges the regulatory portions of the Angola ordinance, and not a local land 

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use ordinance, but this assertion overlooks the O’Banion court’s distinction 

between what the ordinance regulated and what the statute regulated. Angola 

Ordinance 1418-2012 regulates sexually oriented businesses, while the state 

alcoholic beverage statutes regulate the manufacture, sale, possession, and use 

of alcohol and alcoholic beverages. The ordinance doesn’t 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 doesn’t affect the liquor retail permit 

itself. Indiana’s court of appeals later distinguished the O’Banion ordinance 

from an ordinance in City of Fort Wayne v. Kotsopoulos, 704 N.E.2d 1069 (Ind. 

Ct. App. 1999), that expressly required businesses to obtain a local permit 

before selling alcoholic beverages during festivals. State liquor laws preempted 

the ordinance and rendered it invalid because the city’s ordinance imposed a 

local permit requirement upon holders of state-issued alcohol permits. Id. at 

1072. The ordinance and the statute both regulated alcohol. The Angola 

ordinance regulates sexually oriented businesses, not alcohol. 

 Finally, Angola argues the ordinance’s purpose is consistent with the 

state’s alcoholic beverage statutory purposes. The general purposes of the 

Indiana alcoholic beverage statutes are “(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. 

(3) To regulate the sale, possession, and distribution of tobacco products. (4) To 

provide for the raising of revenue.” IND. CODE § 7.1-1-1-1. The legislature 

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intended for Indiana Code § 7.1-3-9-6, the preemption statute, “to prevent 

cities or towns from circumventing the required waiting period for repealing an 

ordinance or contravening the [Alcoholic Beverage Commission’s] authority to 

validly issue permits.” Town of Leo-Cedarville v. Indiana Alcoholic Beverage 

Comm’n, 754 N.E.2d 1041, 1051 (Ind. Ct. App. 2001). The primary purpose of 

Angola Ordinance 1418-2012 is “to regulate sexually oriented businesses in 

order to promote the health, safety, and general welfare of the citizens of the 

City, and to establish reasonable and uniform regulations to prevent the 

deleterious secondary effects of sexually oriented businesses within the City.” 

The statutes and ordinance share a goal of protecting the public’s health and, 

in general, the welfare of citizens, but in two different ways. Importantly, the 

statutes and ordinance regulate two separate things – the manufacture, sale, 

possession, and use of alcohol and alcoholic beverages and sexually oriented 

businesses. Nothing in the Angola ordinance’s purpose conflicts with the 

alcoholic beverage statutes’ general purpose. The ordinance’s regulation of 

sexually oriented businesses also doesn’t affect the Alcoholic Beverage 

Commission’s authority to validly issue permits and so doesn’t contravene the 

purpose of Indiana Code § 7.1-3-9-6. 

 Judgment is appropriate because BBL can’t prove any set of facts that 

would support its claim that Indiana liquor laws preempt the licensing and 

regulatory ordinance. 

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C. First Amendment 

 In Count 5 of the complaint, BBL alleges that Ordinance 1418-2012, the 

licensing and regulatory ordinance, and Ordinance 1425-2015, the Unified 

Development Ordinance amendments, violate the First Amendment in various 

ways. BBL contends (and Angola doesn’t disagree) that the female performance 

entertainment Showgirl intends to present is expressive conduct protected by 

the First Amendment. G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 

631, 636 (7th Cir. 2003) (citing City of Erie v. Pap’s A.M., 529 U.S. 277, 289 

(2000)). The Fourteenth Amendment’s Due Process Clause applies the First 

Amendment’s protections to the states. Ben’s Bar, Inc. v. Village of Somerset, 

316 F.3d 702, 707 (7th Cir. 2003). Angola claims the Supreme Court and 

Seventh Circuit Court of Appeals have upheld similar ordinances under the 

three-part test outlined in City of Renton v. Playtime Theatres, Inc., 475 U.S. 

41 (1986), and reaffirmed in City of Los Angeles v. Alameda Books, Inc., 535 

U.S. 425 (2002). The first question for a court is whether the ordinance is a 

total ban on expression or merely a time, place, and manner regulation. City of 

Renton v. Playtime Theatres, Inc., 475 U.S. at 46. An ordinance that results in 

a total ban is invalid; if the ordinance is a time, place, and manner regulation, 

the court next decides whether the regulation is content-based or contentneutral. Id. at 46-47. A content-based restriction must advance a compelling 

state interest and be narrowly drawn to be the least restrictive means to 

further the interest. Sable Comm’ns of California, Inc. v. F.C.C., 492 U.S. 115, 

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126 (1989). A content-neutral restriction must be narrowly tailored to serve a 

substantial state interest while not unreasonably limiting alternative avenues 

of communication. City of Renton v. Playtime Theatres, Inc., 475 U.S. at 47. 

 Neither ordinance entirely prohibits sexually oriented businesses or 

businesses presenting semi-nude female performance entertainment from 

operating in Angola. Id. at 46. Ordinance 1418-2012, the licensing and 

regulatory ordinance, establishes a license requirement and general regulations 

for sexually oriented businesses, such as hours of operation and a 750 feet 

residential buffer. Ordinance 1425-2012 amended Angola’s Unified 

Development Ordinance to permit sexually oriented businesses in the I2 

District and prohibit them in the C2 District. The amendments also prohibit 

sexually oriented businesses within 750 feet of residences and within 1,000 

feet of residential districts, public gathering places, and other sexually oriented 

businesses. The ordinances are time, place, and manner regulations. 

Content-Based or Content-Neutral 

 BBL argues the ordinances are unconstitutional as content-based 

restrictions on speech and expression. Angola claims the ordinances are 

content-neutral restrictions designed to prevent negative secondary effects. A 

content-based regulation is one enacted for the purpose of restraining 

expression on the basis of its content. City of Renton v. Playtime Theatres, Inc., 

475 U.S. 41, 46-47 (1986). Content-neutral regulations of sexually oriented 

businesses are justified without reference to the content of the regulated 

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expression and instead address the negative secondary effects caused by such 

expression. Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 723 (7th Cir. 

2003); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. at 48. The 

text of the ordinance, any preamble or express findings of the Angola Common 

Council, and studies and information of which the members of the Common 

Council were clearly aware are all relevant in determining whether the 

ordinance targets the content of the expression or the negative secondary 

effects. Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d at 723 n.28.

 This is the first purpose of Angola Ordinance 1418-2012: 

It is the purpose of this ordinance to regulate sexually oriented 

businesses in order to promote the health, safety, and general 

welfare of the citizens of the City, and to establish reasonable and 

uniform regulations to prevent the deleterious secondary effects of 

sexually oriented businesses within the City. 

The first purpose of Angola Ordinance 1425-2012 is essentially identical. 

Angola claims these findings were based on voluminous documents, including 

judicial decisions, land use studies, affidavits, and crime impact reports. The 

findings and rationale sections of Ordinances 1418-2012 and 1425-2012 state: 

Based on evidence of the adverse secondary effects of adult uses 

presented in hearings and in reports made available to the 

Common Council, and on findings, interpretations, and narrowing 

constructions incorporated in the cases of [eleven Supreme Court 

cases] and [forty-three other cases] and based upon reports 

concerning secondary effects occurring in and around sexually 

oriented businesses, including, but not limited to [twenty-seven 

reports] the Common Council finds: 

(1) Sexually oriented businesses, as a category of commercial uses, 

are associated with a wide variety of adverse secondary effects 

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including, but not limited to, personal and property crimes, 

prostitution, potential spread of disease, lewdness, public 

indecency, obscenity, illicit drug use and drug trafficking, 

negative impacts on surrounding properties, urban blight, litter, 

and sexual assault and exploitation. . . . 

The Common Council found “that the cases and documentation relied on in 

this ordinance are reasonably believed to be relevant to said secondary effects” 

and incorporated “its stated findings and legislative record related to the 

adverse secondary effects of sexually oriented businesses, including the judicial 

opinions and reports related to such secondary effects” into the ordinances. 

 Angola submitted an index to the legislative secondary effects 

documentation and copies of the underlying cases and reports with its answer 

to the complaint. The case law consulted by the Common Council is compiled 

in a single document that is 723 pages long and doesn’t include an index of the 

specific cases. A cursory search revealed a 2011 and a 2012 case, so 

presumably some of the case law is recent, and from a variety of courts, from 

the Supreme Court of the United States to the Circuit Court of the Fourth 

Judicial Circuit in Effingham County, Illinois. The record also contains thirtyeight reports spanning 1977 through 2012, and one of which is a summary of 

the key reports on the negative secondary effects of sexually oriented 

businesses. Eight of the reports were published in 2008 or later. The reports 

focus on many different cities, both large, such as Indianapolis, Indiana and 

Los Angeles, California, and small, such as Clarksville, Indiana and Metropolis, 

Illinois. The documents were made a part of the official record for the Common 

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Council’s meeting and were, in turn, incorporated into the ordinances. The 

ordinances also specifically list fifty-four cases and twenty-seven reports. 

 The ordinances’ stated purpose, the underlying documents the Common 

Council relied on and incorporated into the ordinances, and the Common 

Council’s findings and rationale ratified in the text of the ordinances all 

support Angola’s contention that the ordinances were enacted to combat 

negative secondary effects. 

 BBL claims Angola’s asserted justification is disingenuous because the 

ordinances were passed in response to Showgirl’s plan to operate in the City. 

BBL cites cases in which the timing of the ordinance enactment was suspicious 

and the cities relied on little or no evidence of negative secondary effects. In 

Discotheque, Inc. v. City Council of Augusta, 449 S.E.2d 608, 609 (Ga. 1994), 

the court found an ordinance’s preamble to be self-serving conclusory hearsay 

because the city council didn’t rely on any evidence to support the purported 

negative secondary effects it was addressing. BBL also cites Doctor John’s, Inc. 

v. City of Sioux City, Iowa, 305 F. Supp. 2d 1022, 1030 (N.D. Iowa 2004), in 

which the senior city planner testified that he had reviewed a number of 

studies that were done by various cities throughout the country regarding the 

negative secondary effects of stores like the one Doctor John’s planned to open. 

The court found no evidence that the senior city planner conveyed his 

understanding or summaries of the studies to members of the City Council or 

the City Attorney and no evidence that the members of the City Council or the 

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City Attorney reviewed such studies. Id. The ordinance didn’t state a purpose to 

combat secondary effects of adult entertainment businesses or any purpose at 

all. Id. at 1036. The only evidence in the record indicated that the ordinance 

was passed in direct response to Doctor John’s intention to open a store and 

comply with the city’s other requirements. Id. Consequently, the court 

concluded Doctor John’s was likely to succeed on its claim that the ordinances 

were content-based. Id. at 1037. In 2302 N. Truman Entertainment 

Management, LLC v. City of Pevely, No. 4:11CV171, 2012 WL 6705868, at *14 

(E.D. Mo. Dec. 26, 2012), the court found no evidence of adverse secondary 

effects from take-home only businesses such as the Pure Pleasure Megacenter 

store. The city provided the court miscellaneous research materials that opined 

negatively on adult entertainment but didn’t mention any legally cognizable 

adverse secondary effects. Id. at *16. The court found the city tried to 

camouflage its motivation by alleging a pretextual interest in addressing 

adverse secondary effects when the ordinance actually was enacted to suppress 

constitutionally protected expression. Id. at *19. Finally, a court found the 

city’s destruction of the tape recordings of the City Council’s closed-session 

meetings in which the ordinances at issue were discussed to be “ill-conceived, 

illegal, and unconstitutional actions in targeting and attempting to trample the 

plaintiff’s First Amendment rights” in Doctor John’s, Inc. v. City of Sioux City, 

Iowa, 486 F. Supp. 2d 953, 956 (N.D. Iowa 2007). BBL doesn’t allege Angola 

destroyed any evidence from the Common Council’s meetings. 

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In none of BBL’s cited cases did the city rely on the substantial evidence 

about the negative secondary effects of sexually oriented businesses presented 

by the City of Angola. The court agrees with BBL that the timing of the 

enactment of the Angola ordinances is suspicious. Angola claims similar 

ordinances were inadvertently changed in the 2008 overhaul of the zoning 

system, and the 2012 changes merely restored protection that the City never 

meant to lose. Although Angola asserts the timing of the enactment of the 

ordinances was coincidental, the timing seems to be in response to BBL’s plans 

to open and operate Showgirl. Nonetheless, the City did its research and relied 

on many cases, studies, and reports regarding the negative secondary effects 

that occur around sexually oriented businesses. The records in BBL’s cited 

cases lacked sufficient evidence of any other motive but to prevent the opening 

of a sexually oriented business. 

 Angola argues the motives of the Common Council and its attorneys are 

irrelevant to a First Amendment analysis and cites DiMa Corp. v. Town of 

Hallie. 185 F.3d 823, 828 (7th Cir. 1999) (“The actual motives of those who 

enacted the ordinance are irrelevant to [the court’s] First Amendment 

analysis.”). BBL cites Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994), 

and emphasizes that the court must not accept the purported legislative 

motivations at face value. Id. at 645-646 (“[E]ven a regulation neutral on its 

face may be content based if its manifest purpose is to regulate speech because 

of the message it conveys.”). Both parties are correct. The court doesn’t “ask 

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whether the motives of the [Common Council] can be justified as contentneutral time, place, and manner restrictions, but rather whether the ordinance 

itself can be so justified.” DiMa Corp. v. Town of Hallie, 185 F.3d at 829. Even 

construing all reasonable inferences in BBL’s favor, Angola has presented 

sufficient evidence of negative secondary effects that was relied on by the 

Common Council and outweighs the suspicious timing of the enactment of the 

ordinances. The ordinances are content-neutral and subject to intermediate 

scrutiny. 

Substantial State Interest 

 A content-neutral restriction must be narrowly tailored to serve a 

substantial state interest while not unreasonably limiting alternative avenues 

of communication. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 

(1986). The parties address the sufficiency of the alternative sites in the 

summary judgment discussion that follows. BBL argues the ordinances don’t 

further any important, substantial, or compelling state interest. Angola argues 

the ordinances further the substantial state interest of preventing negative 

secondary effects. 

To decide whether an ordinance serves a substantial state interest, the 

court examines the “quality and quantum of evidence” the city relied on and 

whether that research reasonably links the regulated activity to the adverse 

secondary effects. G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 631, 

638-639 (7th Cir. 2003). A municipality can rely on any relevant information, 

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including judicial decisions, land use studies, police reports, news articles, and 

affidavits of investigators. See Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 

702, 725 (7th Cir. 2003) (village’s evidentiary record of judicial decisions and 

studies and reports from different cities fairly supported the village’s rationale). 

“The First Amendment does not require a city, before enacting such an 

ordinance, to conduct new studies or produce evidence independent of that 

already generated by other cities, so long as whatever evidence the city relies 

upon is reasonably believed to be relevant to the problem that the city 

addresses.” City of Renton v. Playtime Theatres, Inc., 475 U.S. at 51-52. The 

regulating body isn’t required to rely on research that targets the exact activity 

it wants to regulate. G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d at 

639. The fifty-four judicial decisions and thirty-eight reports the Angola 

Common Council relied on and incorporated into the ordinances must 

reasonably link the negative secondary effects of semi-nude dancing 

establishments to personal and property crimes, prostitution, potential spread 

of disease, lewdness, public indecency, obscenity, illicit drug use and drug 

trafficking, negative impacts on surrounding properties, urban blight, litter, 

and sexual assault and exploitation. The court groups the negative secondary 

effects into four categories: increased crime, drug use and trafficking, sexual 

assault and exploitation, and decline in property values. 

Angola argues the Common Council relied on many judicial decisions 

that upheld sexually oriented business regulations similar to those in the 

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Angola ordinances. “A city may rely upon previous judicial opinions evaluating 

secondary effects the city desires to regulate.” Andy’s Rest. & Lounge, Inc. v. 

City of Gary, 466 F.3d 550, 555 (7th Cir. 2006) (citing City of Erie v. Pap’s 

A.M., 529 U.S. 277, 297 (2000)). A residential buffer, Angola emphasizes, was 

upheld in City of Renton v. Playtime Theatres, Inc., 475 U.S. at 43 (1,000 feet 

of any residential zone, single- or multiple-family dwelling, church, park, or 

school), and a total nudity ban was upheld in City of Erie v. Pap’s A.M., 529 

U.S. 277, 296 (2000). Angola points out that a dancer-to-patron buffer was 

upheld in G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d at 636, 640, 

and an hours of operation restriction was upheld in Andy’s Rest. & Lounge, 

Inc. v. City of Gary, 466 F.3d at 556. All four cases were included in the 

judicial decisions the Common Council incorporated as a part of the legislative 

record. 

 Angola argues that the Common Council also relied on studies and 

summaries of studies conducted by other cities that showed negative 

secondary effects. BBL responds that the ordinances are unconstitutional 

pursuant to Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), 

because the studies the Common Council relied on are largely from 1970 

through 1990. The Supreme Court struck down the law in Shelby County in 

part because it was based on forty-year old data that would be quite different if 

compiled today. Id. at 2631. Angola incorporated thirty-eight reports, including 

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a summary of key reports, in the legislative record for the ordinances. The 

following are the most current reports: 

1. Metropolis, Illinois, Investigator Affidavits Documenting Paid 

Sexual Conduct in Adult Entertainment Club, 2011-2012 

2. El Paso, Texas, Twenty-One Affidavits re: Illicit Sex Acts and 

Unsanitary Conditions in Adult Cabarets and Adult Bookstores, 

2008 

3. Clarksville, Indiana, Investigator Report re: Live Sexual Conduct 

in Adult Entertainment Establishment Booth Areas, 2009 

4. New Albany, Indiana, Investigator Report re: Illicit Sexual 

Conduct at Gentlemen’s Club, 2009 

5. Memphis Alcohol Commission Records re: Strip Club Conduct 

Violations, 2005-2011 

6. Correlates of Current Transactional Sex among a Sample of 

Female Exotic Dancers in Baltimore, MD, JOURNAL OF URBAN 

HEALTH: BULLETIN OF THE NEW YORK ACADEMY OF MEDICINE, 

February 15, 2011 

7. Rural Hotspots: The Case of Adult Businesses, 19 CRIMINAL 

JUSTICE POLICY REVIEW 153 (2008) 

8. Crime Related Secondary Effects of Sexually-Oriented 

Businesses: Report to the Jackson County Legislature, May 9, 

2008 

Those eight reports were compiled from 2008 to the present; nine other reports 

were compiled between 2003 and 2007. Thus, seventeen reports, or 46 percent, 

are based on data from the past ten years, and eight reports, or 22 percent, are 

based on data from the past five years. The remaining twenty reports are more 

than ten years old. Unlike the forty-year old data that was the sole basis of the 

law in Shelby County, 133 S. Ct. at 2631, the Angola Common Council relied 

on new and old data. 

 Next, BBL relies on Annex Books, Inc. v. City of Indianapolis, Indiana, 

581 F.3d 460 (7th Cir. 2009), in which a city’s consideration of foreign sources 

and a dated study was insufficient evidence to support the city’s hours of 

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operation ordinance. Importantly, none of the evidence in Annex Books 

concerned the type of ordinance at issue – hours of operation of book or video 

outlets with 25 percent or more of their sales from sex-related materials – but 

instead the studies and judicial decisions concerned adult establishments with 

live entertainment and/or private viewing booths. Id. at 462-463. Further, none 

of the evidence showed that an increase in hours of operation at such 

establishments was associated with more crime. Id. at 463. Under intermediate 

scrutiny, “any empirical study of morals offenses near any kind of adult 

establishment in any city” doesn’t justify “every possible kind of legal 

restriction in every city.” Id. BBL claims Angola can’t rely on pre-packaged 

secondary effects studies and studies that primarily concern nude dancing. 

Angola contends the studies the Common Council relied on are relevant 

because they concern adult businesses that offer live sex shows, private 

viewing booths, or both. Angola emphasizes that a city doesn’t have to rely on 

evidence about the exact activity the city wants to regulate. G.M. Enters., Inc. 

v. Town of St. Joseph, Wis., 350 F.3d 631, 639 (7th Cir. 2003). Still, the city 

must rely on research that reasonably links the regulated activity to the 

adverse secondary effects. While most of the reports relied on by the Angola 

Common Council involve adult businesses in general, at least fourteen 

(including seven of the eight most recent reports, compiled from 2008 to the 

present) address adult cabarets directly. Many of the reports examined 

increases in crime surrounding a sexually oriented business. The 2008 report 

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Crime Related Secondary Effects of Sexually-Oriented Businesses: Report to the 

Jackson County Legislature went so far as to conclude that it is a scientific fact 

that sexually oriented businesses, including erotic dance clubs, have 

significant crime-related secondary effects. The report doesn’t define erotic 

dance clubs. High levels of both drug use and transactional sex were found 

among the female exotic dancers who participated in the 2011 study discussed 

in Correlates of Current Transactional Sex among a Sample of Female Exotic 

Dancers in Baltimore, MD, and David Sherman, a former adult cabaret 

manager, testified before a Michigan House Committee in 2000 about the 

“dark, subculture of sex, drugs, alcohol, and prostitution” in stripclubs. A 

majority of the dancers surveyed in Stripclubs According to Strippers: Exposing 

Workplace Sexual Violence reported sexual abuse and exploitation by strip club 

customers. The dancers in the study performed a variety of attractions 

including “topless dancing, nude dancing, table dancing, couch dancing, lap 

dancing, wall dancing, shower dancing and bed dancing.” The negative impact 

of a sexually oriented business, including a gentleman’s club/cabaret, on 

surrounding properties is discussed in Survey of Appraisers, Fort Worth & 

Dallas, Effects of Land Uses on Surrounding Property Values from September 

2004. These five reports didn’t focus specifically on nude dancing and referred 

generically to exotic dancers and adult cabarets, which could focus on either 

nude or semi-nude dancers or both. 

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 A court isn’t required to re-weigh the evidence considered by a legislative 

body and doesn’t have the authority to substitute its judgment as to whether a 

regulation is the best option for a city. G.M. Enters., Inc. v. Town of St. Joseph, 

Wis., 350 F.3d 631, 639-640 (7th Cir. 2003). The court must simply decide 

whether the legislative body relied on evidence “reasonably believed to be 

relevant to the problem addressed.” Id. at 640. The research on which the 

Angola Common Council relied is current, extensive, relevant to the ordinance, 

and reasonably supported the Common Council’s rationale. Relatively recent 

reports directly link the negative secondary effects outlined in the ordinances – 

increased crime, drug use and trafficking, sexual assault and exploitation, and 

decline in property values – to the specific type of adult business at issue here 

– adult cabarets, a category that includes semi-nude dancing establishments. 

 If the evidence fairly supports the city’s rationale, as it does here, the 

challenger must cast doubt on the rationale to shift the burden back to the city 

to supplement the record and justify the ordinance. G.M. Enters., Inc. v. Town 

of St. Joseph, Wis., 350 F.3d at 639 (citing City of Los Angeles v. Alameda 

Books, Inc., 535 U.S. 425, 438-439 (2002)). If the challenger doesn’t cast doubt 

on the rationale, the city has met its burden. Id. Accordingly, BBL argues that 

it should be given the opportunity to cast doubt on the City’s rationale and the 

cases’ applicability at the summary judgment stage. But BBL had the 

opportunity to cast doubt on the City’s rationale in its response to the motion 

for judgment on the pleadings. Angola claims the burden shifting language 

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simply confirms that the city met the evidentiary standard set forth in City of 

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986), that a city must 

rely on evidence that it reasonably believed to be relevant to a link between the 

protected speech and the substantial government interest. Whether this 

standard was met, Angola contends, is a legal question. The court agrees. 

 To challenge the town’s rationale in response to a summary judgment 

motion, the plaintiff in G.M. Enterprises, Inc. v. Town of St. Joseph, Wisconsin 

presented evidence that included a study that found that most of the studies 

the town collected were fundamentally unsound and methodologically flawed, a 

study that concluded the county hadn’t experienced any major problems with 

adult entertainment establishments, an affidavit stating that the property 

values near the club had increased over time, and a statement by the sheriff 

that the volume of police calls generated by the club were unrelated to nude 

dancing. 350 F.3d 631, 636 (7th Cir. 2003). The court of appeals concluded 

that although the evidence showed the town “might have reached a different 

and equally reasonable conclusion regarding the relationship between adverse 

secondary effects and sexually oriented businesses, it is not sufficient to vitiate 

the result reached in the [town’s] legislative process.” Id. at 639. After the city 

met its burden in ABCDE Operating, LLC v. City of Detroit, No. 10-13435, 

2011 WL 3607072, at *4-5 (E.D. Mich. Aug. 16, 2011), the court held that a 

generic argument that sexually oriented businesses don’t cause negative 

secondary effects, based on a letter and several articles, was insufficient to 

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rebut the evidence of secondary effects and didn’t cast doubt on the city’s 

rationale. The court granted the city’s motion for judgment on the pleadings. 

Id. at *5. In Enlightened Reading, Inc. v. Jackson County, Missouri, No. 08-

0209, 2009 WL 792492, *at 3 (W.D. Mo. Mar. 24, 2009), the opposing party 

didn’t offer evidence disputing the county’s factual findings, but argued the 

evidence didn’t support the county’s rationale because the evidence didn’t 

consider its specific type of establishment. The court concluded that the county 

relied on evidence regarding reasonably similar businesses that was reasonably 

relevant to the secondary effects the county sought to address, the opposing 

party didn’t cast doubt on the county’s rationale, the county consequently met 

its evidentiary burden to justify its substantial government interest, and 

judgment on the pleadings was appropriate. Id. *at 4, 9. Conversely, summary 

judgment was denied in Erie Boulevard Triangle Corp. v. City of Schenectady, 

250 F. Supp. 2d 22 (N.D.N.Y. 2003), when the parties disputed the validity of a 

specific report upon which the city had relied. Id. at 34 (“Whether the . . . 

Report is a reliable source upon which the City could reasonably rely is a 

factual issue inappropriate for resolution on summary judgment.”). 

 BBL challenged Angola’s rationale because the documents were 

outdated, largely from 1970 through 1990, and irrelevant, primarily concerning 

nude dancing. The court addressed both arguments and neither argument cast 

doubt on the Angola Common Council’s rationale. Alternatively, BBL argues 

that leave to amend the complaint is proper to allow BBL to assert an 

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additional theory that the Angola Common Council didn’t review or rely on the 

cited secondary effects materials and instead relied on a consultant’s skewed 

presentation that created a false impression that a reasonable justification for 

the ordinances existed. BBL didn’t present this argument in response to 

Angola’s motion for judgment on the pleadings, and the court declines to 

address possible future motions. The fifty-four judicial decisions and thirtyeight reports the Angola Common Council relied on and incorporated into the 

ordinances reasonably link the asserted negative secondary effects – increased 

crime, drug use and trafficking, sexual assault and exploitation, and decline in 

property values – to semi-nude dancing establishments. The evidence supports 

the Common Council’s rationale. The ordinances serve a substantial state 

interest. 

Narrow Tailoring & Overbreadth

 A content-neutral restriction also must be narrowly tailored to serve the 

substantial state interest. City of Renton v. Playtime Theatres, Inc., 475 U.S. 

41, 52 (1986). A narrowly tailored regulation is one that isn’t substantially 

broader than necessary to achieve the government interest the regulation 

furthers. Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989). Angola says 

that BBL argues the ordinances aren’t narrowly tailored because they would 

adversely impact Showgirl’s profits. Angola continues that while the First 

Amendment requires nude and semi-nude dancing establishments be given a 

reasonable opportunity to disseminate speech, the First Amendment isn’t 

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concerned with the economic impact of regulations and cites Ben’s Bar, Inc. v. 

Village of Somerset to support this proposition. 316 F.3d 702, 727 (7th Cir. 

2003) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. at 54). 

 BBL doesn’t address this argument, arguing instead that the ordinances 

aren’t narrowly tailored because they restrict clothed dancing. For the same 

reason, BBL argues the licensing and regulatory ordinance is overbroad. A 

statute is overbroad if a realistic danger exists that the statute will significantly 

compromise protected speech of parties not before the court. Pleasureland 

Museum, Inc. v. Beutter, 288 F.3d 988, 996 (7th Cir. 2002). “[P]articularly 

where conduct and not merely speech is involved, . . . the overbreadth of a 

statute must not only be real, but substantial as well, judged in relation to the 

statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 

(1973). Angola simply claims the ordinances present no such danger, so the 

claim must fail. 

 BBL compares the Angola ordinances to the ordinance that regulated 

clothed dancers in R.V.S., LLC v. City of Rockford, 361 F.3d 402 (7th Cir. 

2004). The City of Rockford defined “clothed” as “fully opaque clothing covering 

over primarily the genitalia, pubic region, buttocks and if the person is female, 

the portions of the breast below the top of the areola,” Id. at 404-405; a 

separate sexually oriented business ordinance applied to nude and semi-nude 

dancers. Id. at 404. The court struck down the ordinance on other grounds, 

but commented on the expansiveness of the ordinance that stretched beyond 

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nude and semi-nude dancing to clothed dancing. Id. at 415. The court 

concluded that some forms of clothed dancing may initiate adverse secondary 

effects similar to nude and semi-nude dancing and may be regulated if the city 

offers sufficient evidence to support its motivation to combat those secondary 

effects. Id. 

 Angola Ordinances 1418-2012 and 1425-2012 regulate adult cabarets 

where live, semi-nude conduct occurs. Semi-nudity is defined in the 

ordinances as follows: 

The showing of the female breast below a horizontal line across the 

top of the areola and extending across the width of the breast at 

that point, or the showing of the male or female buttocks. This 

definition shall include the lower portion of the human female 

breast, but shall not include any portion of the cleavage of the 

human female breasts exhibited in a bikini, dress, blouse, shirt, 

leotard, or similar wearing apparel provided the areola is not 

exposed in whole or in part. 

A semi-nude dancer under the Angola ordinances may have bare breasts below 

the areola or bare buttocks, whereas a clothed dancer pursuant to the City of 

Rockford ordinance wore fully opaque clothing in those areas. See also Ben’s 

Bar, Inc. v. Village of Somerset, 316 F.3d 702, 708 (7th Cir. 2003) (semi-nudity 

defined as “the exposure of a bare male or female buttocks or the female breast 

below a horizontal line across the top of the areola at its highest point with less 

than a complete and opaque covering”). The Angola ordinances regulate seminude dancing, as that term is generally understood in the nude and semi-nude 

dancing context, and don’t regulate clothed dancing like the City of Rockford 

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ordinance. Ordinances that regulate semi-nude dancing establishments aren’t 

substantially broader than necessary to achieve the substantial government 

interest of reducing the adverse secondary effects associated with semi-nude 

dancing. For the same reasons, the Angola ordinances aren’t overly broad 

regulations that reach clothed dancing. 

Vagueness 

 BBL claims the ordinances contain numerous terms and phrases that 

are impermissibly vague and ambiguous, and the ordinances have been applied 

to the plaintiffs in an unconstitutionally vague manner. Angola argues Showgirl 

lacks standing to assert a vagueness claim. BBL concedes in its response that 

the City’s application of the ordinances is required before the vagueness claims 

are ripe, thus entitling the defendants to judgment on those claims. 

Prior Restraint 

 BBL alleges in Count 4 of the complaint that Angola’s improvement 

location permit requirement is an impermissible prior restraint on First 

Amendment activity. BBL asserts that § 5.66 of the Angola Unified 

Development Ordinance was a prior restraint because getting an improvement 

location permit was a prerequisite to opening and operating a sexually oriented 

business. Angola responds that the former version of § 5.66 was repealed, so 

claims for injunctive relief are moot, and the former version wasn’t applied to 

BBL, so BBL suffered no injury as a result. 

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Under Article III of the United States Constitution, a federal court’s 

jurisdiction is limited to live cases in which the parties have a legally cognizable 

interest in the outcome and actual, ongoing controversies. Stotts v. Community 

Unit Sch. Dist. No. 1, 230 F.3d 989, 990 (7th Cir. 2000). “[R]epeal of a 

contested ordinance moots a plaintiff's injunction request, absent evidence that 

the City plans to or already has reenacted the challenged law or one 

substantially similar.” Federation of Adver. Indus. Representatives, Inc. v. City 

of Chicago, 326 F.3d 924, 930 (7th Cir. 2003). Angola asserts that the repeal of 

the improvement location permit requirement from § 5.66 renders moot BBL’s 

request for declaratory or injunctive relief from the code section. Angola says 

the code section was repealed almost two months before BBL filed its 

applications on November 7, 2012, but Angola Ordinance 1425-2012, which 

amended § 5.66, was passed on November 19, 2012, after BBL filed its 

applications. Nonetheless, the improvement location permit requirement in § 

5.66 has been repealed since then, and the City has no reason to reenact the 

requirement when § 9.05 contains the same requirement. Since no sexually 

oriented businesses are located in Angola, any that locate there in the future 

will have to comply with § 9.05 as a change in the preexisting use of the 

property. BBL’s claim for injunctive relief regarding the prior version of § 5.66 

is moot. 

 Next, Angola contends the improvement location permit requirement in § 

5.66 wasn’t applied to BBL, so BBL wasn’t injured by the requirement and isn’t 

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entitled to damages. Damages as a result of the loss of First Amendment rights 

must stem from a particular injury and can’t be based upon an abstract value 

of a constitutional right. City of Watseka v. Illinois Pub. Action Council, 796 

F.2d 1547, 1559 (7th Cir. 1986) (citing Memphis Cmty. Sch. Dist. v. Stachura, 

477 U.S. 299, 310 (1986)). BBL argues that it was harmed when Ms. Likes 

intentionally delayed her decision so the ordinance that repealed § 5.66 could 

be enacted. On November 7, 2012, when BBL filed its applications for a license 

to operate a sexually oriented business and for an improvement location 

permit, § 9.05 required an improvement location permit because Showgirl 

wanted to alter a structure and change the existing use of the property. Ms. 

Likes’ December 3, 2012 decision letter to BBL invoked the improvement 

location permit requirement of § 9.05. Ms. Likes took less than a month to 

issue a decision on the application, but BBL claims Mr. Twitchell indicated the 

decision should only take a few days. Section 5.66 had been repealed by the 

time Ms. Likes sent the letter. 

Before Angola Ordinance 1425-2012 amended § 5.66 on November 19, 

2012, Angola could have applied § 5.66 to BBL’s application and required an 

improvement location permit because BBL was a sexually oriented business or 

Angola could have applied § 9.05 and required an improvement location permit 

so BBL could alter the structure and change the existing use of the property. 

The reason for the requirement could have been different, but the end result – 

an incomplete application – would have been the same. BBL wasn’t injured by 

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the delay or the prior version of § 5.66 that wasn’t applied to its application. 

For the same reason, BBL’s argument that Angola applied shifting objective 

criteria to its application that created a prior restraint, similar to the facts in 

Gammoh v. City of Anaheim, 73 Cal. App. 4th 186, 191 (Cal. Ct. App. 1999), 

collapses. Section 5.66 was repealed, but the improvement location 

requirement never changed. 

 BBL next argues § 9.05 of the Angola Unified Development Ordinance is 

a prior restraint on protected First Amendment activity because it contains an 

improvement location permit requirement. BBL claims the permit application 

and review process vests the Zoning Administrator with unbridled discretion to 

decide whether an application is complete or whether the project complies with 

the City’s code and doesn’t specify a period of time for a decision on the 

application or a ruling on an appeal. 

 An unconstitutional prior restraint typically is either “a scheme that 

places unbridled discretion in the hands of a government official or agency” or 

a restriction “that fails to place limits on the time within which the 

decisionmaker must issue the license.” FW/PBS, Inc. v. City of Dallas, 493 

U.S. 215, 225-226 (1990). BBL’s improvement location permit application 

wasn’t denied; the City deemed it incomplete. Without first being denied a 

license, a facial challenge to an ordinance is permitted in the First Amendment 

context “whenever a licensing law gives a government official or agency 

substantial power to discriminate based on the content or viewpoint of speech 

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by suppressing disfavored speech or disliked speakers.” City of Lakewood v. 

Plain Dealer Publ’g Co., 486 U.S. 750, 759 (1988). For a facial challenge, “[t]he 

law must [also] have a close enough nexus to expression, or to conduct 

commonly associated with expression, to pose a real and substantial threat of 

the identified censorship risks.” Id. An ordinance of general application, with 

neutral criteria, that is “not aimed at conduct commonly associated with 

expression and [does] not permit licensing determinations to be made on the 

basis of ongoing expression or the words about to be spoken” is unlikely to 

result in censorship. Id. at 760-761. 

Angola contends that on its face, the improvement location permit 

requirement has no nexus to expression or to conduct commonly associated 

with expression, and it is a typical land-use regulation directed at public health 

and safety. Consequently, Angola argues, a facial attack to the ordinance is 

inappropriate. Section 9.05 provides that, “[a]n Improvement Location Permit 

shall be required prior to permanent construction, installation, addition, 

alteration, or relocation of a structure; prior to permanent alteration to the 

land; and prior to establishment of a new land or change [to] an existing land 

use.” The text of § 9.05 doesn’t mention speech, or expression, or sexually 

oriented businesses. The requirement applies to both residents and businesses 

located in the City of Angola. Examples of projects requiring an improvement 

location permit include installation of a swimming pool, modification of a 

structure’s height, construction of a detached garage, and installation of a well 

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or septic system. The ordinance notes some exceptions to the requirement, 

such as repairs to an existing structure and installation of flag poles. 

 Angola further argues that Showgirl’s proposed structural alterations 

and change of the property’s preexisting use triggered the improvement 

location permit requirement, not that Showgirl is a sexually oriented business. 

Angola’s brief refers to modifications specified in BBL’s application for a 

construction design release from the State of Indiana: “conversion of existing 

reception hall to a bar/restaurant” and “project involves structural 

modifications and construction of new interior walls.” The improvement 

location permit application BBL submitted to the City, in contrast, simply 

describes the project as “Interior renovations for a Gentlemen’s Club.” Ms. 

Likes’ December 3, 2012 letter to BBL invoked the improvement location permit 

requirement of § 9.05 based on a finding that BBL’s application “triggers the 

ILP requirement under Section 9.05 because it indicates a change in the 

existing land use (see Section 9.02.D).” A change in existing land use would 

have been evident from BBL’s application since the location had been used as a 

restaurant, and the application specifies that it will now be used as a 

“Gentlemen’s Club.” Angola argues that the only action taken pursuant to § 

9.05 was to inform BBL that the application was incomplete. The letter stated 

in part: 

[T]he application needs to include a “detailed description” of how 

the change in land use will affect those elements that are not 

already addressed in the attachments to the ILP application 

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(concerning how the change in use will affect parking, average 

daily trips, and courier service). 

Additionally, the application is not complete with regard to 

information concerning the proposed signs for the project. 

1. There is a drawing of a “Showgirl” sign that is 11 feet high by 

54 feet wide. Please indicate what kind of sign this is 

proposed to be and please indicate, on the site plan, where it 

is proposed to be erected. 

2. The Front Elevation for the project (plan page A2.1) appears 

to show a sign on the roof. Please note that signs are not 

permitted on roofs. (See Section 5.67.F.1.g.) 

3. Section 5.73.A.1.a sets forth the limit on cumulative square 

footage for permanent signs, which is based on the length of 

the front façade. The proposed signs appear to exceed that 

limit. 

The two reasons given for the application’s incompleteness don’t implicate 

protected speech or expression. The sign requirements are content-neutral and 

simply describe location and size regulations for signs. The requirements could 

be imposed on any other type of business located in the City of Angola and 

aren’t specific to sexually oriented businesses. As Angola argues, nothing 

suggests the enforcement of a complete application requirement was different 

from what has been enforced against other businesses. 

 BBL argues the improvement location permit requirement is a 

prerequisite to operating a sexually oriented business, which is precisely the 

type of permit courts have found to be a prior restraint. The three ordinances 

in the cases cited by BBL all targeted behavior associated with speech – selling 

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materials depicting sexual conduct, indoor theaters, and entertainment. BBL 

cites Special Souvenirs, Inc. v. Town of Wayne, 56 F. Supp. 2d 1062, 1086 

(E.D. Wis. 1999), in which the court analyzed the town’s zoning scheme as a 

prior restraint because the ordinance specified that bookstores selling 

materials depicting sexual conduct had to obtain a conditional use permit 

before lawfully engaging in protected speech. BBL also cites Kraimer v. City of 

Schofield, 342 F. Supp. 2d 807, 816 (W.D. Wis. 2004), in which the court 

analyzed an ordinance as a prior restraint because the ordinance allowed 

indoor theaters in a zoning district in some circumstances and required 

government permission to engage in expression. Finally, BBL cites TJ’s South, 

Inc. v. Town of Lowell, 895 F. Supp. 1124, 1133 (N.D. Ind. 1995), in which this 

court found an ordinance that required eating-and-drinking establishments to 

obtain permission from the town in the form of a special exception before 

presenting entertainment to be an unconstitutional prior restraint. Angola’s 

improvement location permit requirement targets construction and alteration of 

structures or land and establishment or change in land use at both commercial 

and residential properties. The requirement applies to any type of business or 

home and doesn’t have any nexus to expression or to conduct commonly 

associated with expression. 

Finally, BBL cites Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 

1358, 1362 (11th Cir. 1999), in which the Eleventh Circuit court of appeals 

held that a city’s nine run-of-the-mill criteria for a zoning exception, such as 

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compatibility with contiguous uses, environmental impact, and effect of 

pedestrian traffic, weren’t precise and objective and so gave too much 

discretion to public officials when applied to adult businesses. Our court of 

appeals, however, hasn’t viewed licensing schemes as harshly as the Eleventh 

Circuit. BC Tavern of Kenosha, Inc. v. City of Kenosha, No. 11-C-959, 2013 WL 

592888, at *6 (E.D. Wis. Feb. 14, 2013), reconsideration denied, No. 11-C-959, 

2013 WL 3879911 (E.D. Wis. July 26, 2013). In MacDonald v. City of Chicago, 

our court of appeals upheld Chicago’s parade permitting ordinance that 

required a government official to consider whether the proposed parade route 

would substantially or unnecessarily interfere with traffic, whether there were 

sufficient city resources to mitigate the disruption, whether a sufficient number 

of peace officers were available to police and protect lawful participants and 

non-participants, and whether the concentration of persons would prevent 

proper fire and police protection or ambulance service. 243 F.3d 1021, 1026 

(7th Cir. 2001). The court concluded the ordinance didn’t authorize any 

judgment about the content of the speech and limited the government official’s 

discretion based on content-neutral criteria. Id. at 1031-1032. Consequently, 

the threat of censorship characteristic of a prior restraint was remote, and the 

ordinance, the court decided, should be analyzed as a time, place, and manner 

licensing system. Id. at 1032. The City of Milwaukee refused to renew the 

liquor license of the tavern that presented exotic dancing in Blue Canary Corp. 

v. City of Milwaukee, 251 F.3d 1121, 1122 (7th Cir. 2001). Our court of 

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appeals concluded the “sale of liquor is unexceptionally a licensed activity even 

when the licensed restaurant or tavern provides entertainment for its 

customers,” so the annual liquor license renewal requirement wasn’t a prior 

restraint because it didn’t concern the content of speech. Id. at 1123. 

Permanent construction, modifications to a structure, permanent 

alteration to land, establishment of a new land use, or change to an existing 

land use generally are activities that require a permit. Angola’s improvement 

location permit requirement applies to all businesses and residences in the City 

of Angola and applies to BBL due to the business’s planned structural 

alterations and change of the property’s preexisting use, not its status as a 

sexually oriented business. “[A] law requiring building permits is rarely effective 

as a means of censorship.” City of Lakewood v. Plain Dealer Publ’g Co., 486 

U.S. 750, 761 (1988). The improvement location permit requirement is contentneutral and not a prior restraint. A facial attack to the § 9.05 improvement 

location permit requirement is inappropriate, and the section should be treated 

as a time, place, and manner regulation. 

D. 42 U.S.C. § 1988 

In Count 7 of the complaint, BBL claims it is entitled to an award of 

costs and attorney fees as a prevailing party pursuant to 42 U.S.C. § 1988. 

Angola argues that BBL isn’t entitled to costs and fees under § 1988 because 

its claims fail as a matter of law. BBL hasn’t responded to Angola’s argument, 

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and the complaint doesn’t specify under which provision BBL would be a 

prevailing party. Nevertheless, one issue survives summary judgment. BBL 

likely hopes to invoke 42 U.S.C. § 1983 that creates liability when a person 

acting under the color of law subjects a citizen to the deprivation of 

constitutional rights and privileges. Although BBL doesn’t mention the statute 

in the § 1988 claim, § 1983 and the City’s actions “under color of state law” are 

mentioned several times in the complaint. A successful § 1983 action entitles 

the prevailing party to seek attorney’s fees pursuant to § 1988. Generously 

construing all reasonable inferences in BBL’s favor, Angola isn’t entitled to 

judgment on BBL’s claim for costs and attorney fees. 

E. Personal Liability of Vivian Likes 

BBL claims in Count 6 of its complaint that Angola Zoning Administrator 

Vivian Likes is personally liable for the violation of its rights under the First 

and Fourteenth Amendments. Angola maintains that Ms. Likes is entitled to 

qualified immunity for her acts taken as the City’s Zoning Administrator. 

“Every person who, under color of any statute, ordinance, regulation, custom, 

or usage, of any State . . . subjects, or causes to be subjected, any citizen of the 

United States . . . to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured in an 

action at law, suit in equity, or other proper proceeding for redress . . . .” 42 

U.S.C. § 1983. An individual is liable under § 1983 if she knowingly, willfully, 

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or at least recklessly caused the constitutional deprivation by her action or 

failure to act. Rascon v. Hardiman, 803 F.2d 269, 273-274 (7th Cir. 1986). 

“Government officials performing discretionary functions generally are shielded 

from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person 

would have known.” Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Two considerations 

govern a government official’s entitlement to qualified immunity on a personal 

liability claim. First, the plaintiff must show that the law was clear in relation 

to the specific facts confronting the public official when she acted, and second 

the court evaluates the objective legal reasonableness of the official’s conduct, 

that is whether reasonably competent officials would agree on the application 

of the clearly established right to a given set of facts. Biddle v. Martin, 992 F.2d 

at 675. 

 BBL argues that its pleadings demonstrate Ms. Likes’s personal liability 

under 42 U.S.C. § 1983, and its response doesn’t address the issue of qualified 

immunity. The complaint alleges that Ms. Likes gave false disqualifying criteria 

to an attorney for BBL and participated in the denial of the improvement 

location permit. Ms. Likes purposefully took these actions, BBL contends, to 

preclude Showgirl from operating and in reckless disregard and willful 

indifference to BBL’s constitutional rights. 

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Angola claims Ms. Likes is entitled to qualified immunity because BBL 

can’t show a constitutional violation or that she violated any clearly established 

rights. Angola contends that in August 2012, Ms. Likes commented on the 

Unified Development Ordinance in response to a question from Showgirl’s 

attorney and her response was the allegedly false disqualifying criteria. Angola 

maintains that BBL disagreed with Ms. Likes’ response and formed its own 

opinion. BBL alleges that when Ms. Likes provided false disqualifying criteria to 

its attorney, she disregarded BBL’s constitutional rights, but BBL doesn’t allege 

this action violated the First Amendment. The complaint must set “forth facts 

sufficient to support a cognizable legal theory.” Scherr v. Marriott Int’l, Inc., 

703 F.3d 1069, 1073 (7th Cir. 2013). Mr. Butler’s affidavit asserts that after 

reviewing the correspondence from Ms. Likes, he was convinced she was wrong 

and the premises were properly zoned for a sexually oriented business and 

there were no disqualifying use or residentially zoned parcels within 1,000 feet 

of the premises. BBL apparently didn’t rely on Ms. Likes’ allegedly false 

statements or act accordingly. 

Secondly, BBL claims Ms. Likes participated in the denial of its 

improvement location permit in violation of its constitutional rights. Ms. Likes 

denied Showgirl’s incomplete improvement location permit. As discussed 

earlier, the § 9.05 improvement location permit requirement that Ms. Likes 

applied to BBL’s application was a generally applicable ordinance with no 

nexus to speech. Application of the improvement location permit requirement 

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or the denial of BBL’s incomplete application didn’t violate the First 

Amendment. Even construing all reasonable inferences in BBL’s favor and 

assuming Ms. Likes provided false disqualifying criteria, without a 

constitutional violation from either action, Ms. Likes can’t be liable under § 

1983. Ms. Likes is entitled to judgment as to her individual liability. 

F. Hearing Officer’s Decision 

 BBL also appeals the hearing officer’s decision. BBL argues that the 

licensing and regulatory ordinance violates the First and Fourteenth 

Amendments and Indiana law for the reasons stated in the complaint and that 

Angola didn’t show that the residences located within 750 feet of Showgirl’s 

proposed location were lawful in their respective zoning districts. Angola says 

the constitutional and state law claims should be affirmed for the reasons 

already discussed and substantial evidence supported the hearing officer’s 

decision. Angola also argues that BBL waived its claim about the lawfulness of 

the residences within 750 feet of the location because BBL didn’t raise it before 

the hearing officer. Regardless, Angola continues, the residences’ compliance 

with the zoning code is irrelevant to the 750 feet buffer from “every residence.” 

BBL doesn’t respond to this argument, but challenges the hearing officer’s 

decision as based on an unconstitutional ordinance and directs the court to 

the pages of its response that discuss the argument that the ordinances were 

enacted in order to suppress BBL’s impending First Amendment activity. The 

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court analyzed the parties’ constitutional arguments earlier, and because the 

plaintiff doesn’t address the remaining argument in the response brief, it is 

waived. Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 

2007); Greater Indianapolis Chapter of N.A.A.C.P. v. Ballard, 741 F. Supp. 2d 

925, 938 (S.D. Ind. 2010). 

G. Conclusion 

The licensing and regulatory ordinance doesn’t specify the districts where 

sexually oriented businesses are allowed. Thus, the ordinance isn’t a zoning 

ordinance under Indiana law and didn’t need to be enacted pursuant to the 

statutory procedure for zoning ordinances. The ordinance doesn’t violate either 

Indiana Code § 36-1-6-9 or § 36-7-4-918.1 and isn’t preempted by Indiana 

liquor laws. The defendants are entitled to judgment on BBL’s state law claims. 

The Angola Common Council relied on sufficient evidence that 

reasonably links negative secondary effects to semi-nude dancing 

establishments and outweighed the suspicious timing of the enactment of the 

ordinances. Consequently the ordinances are content-neutral and serve a 

substantial state interest. The ordinances aren’t substantially broader than 

necessary to achieve that government interest, so the ordinances are narrowly 

tailored. The ordinances aren’t overly broad regulations, and the vagueness 

claim is not yet ripe. The repeal of the improvement location permit 

requirement from § 5.66 renders BBL’s request for declaratory or injunctive 

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relief from that code section moot, and BBL wasn’t injured by the slight delay 

of the decision or by the prior version of § 5.66 that wasn’t applied to its 

application. Section 9.05’s improvement location permit requirement isn’t a 

prior restraint on protected First Amendment activity, and the section should 

be treated as a time, place, and manner regulation. But for the sufficiency of 

the number of adequate alternative sites argument addressed in the partial 

motion for summary judgment that follows, defendants are entitled to 

judgment on BBL’s First Amendment claims. 

At this point, BBL’s claim for an award of costs and attorney fees as a 

prevailing party pursuant to 42 U.S.C. § 1988 remains. Ms. Likes is entitled to 

judgment as to her individual liability, and defendants are entitled to judgment 

on the appeal of the hearing officer’s decision. 

III. MOTION FOR PARTIAL SUMMARY JUDGMENT

The defendants move for summary judgment on the plaintiffs’ claim that 

the ordinances at issue are unconstitutional content-neutral restrictions 

because they don’t provide enough adequate alternative sites for sexually 

oriented businesses. 

A. Legal Standard 

Summary judgment must be granted “if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to 

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judgment as a matter of law.” FED. R. CIV. P. 56(a). The court draws all 

reasonable inferences from the evidence in the nonmoving party’s favor. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). For a factual 

dispute to preclude summary judgment, the dispute must be material and 

genuine. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The underlying 

substantive law determines whether a factual dispute is material. Id. (citing 

Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A genuine factual dispute 

exists when “the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 

at 248). “Once the moving party puts forth evidence showing the absence of a 

genuine dispute of material fact, the burden shifts to the non-moving party to 

provide evidence of specific facts creating a genuine dispute.” Id. 

B. Adequate Number of Alternative Sites 

 “‘[C]ontent-neutral’ time, place, and manner regulations are acceptable 

so long as they are designed to serve a substantial governmental interest and 

do not unreasonably limit alternative avenues of communication.” City of 

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). The City’s asserted 

substantial government interest was addressed earlier. “[T]he First Amendment 

requires only that [a city] refrain from effectively denying [sexually oriented 

businesses] a reasonable opportunity to open and operate [a sexually oriented 

business] within the city.” Id. at 54. Municipalities are allowed to zone “strip 

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joints, adult book stores, and like erotic sites” out of the residential and the 

classier commercial areas of the city. Blue Canary Corp. v. City of Milwaukee, 

270 F.3d 1156, 1158 (7th Cir. 2001) (collecting cases). BBL claims that fewer 

than a dozen sites or less than 1 percent of the City acreage is generally 

considered inadequate and cites Dia v. City of Toledo, 937 F. Supp. 673, 678 

(N.D. Ohio 1996). In this circuit, however, a reasonable opportunity to 

disseminate the speech doesn’t hinge on the percentage of land available under 

the ordinance, but is a fact-specific inquiry and depends on any relevant 

evidence. North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th 

Cir. 1996). Angola has a population of 8,612, as recorded in the 2010 census, 

and a land area of 6.34 square miles. The parties agree that the licensing and 

regulatory ordinance applied to Showgirl’s application and required a sexually 

oriented business to be on a parcel at least 750 feet from parcels containing a 

residence, measured parcel line to parcel line. 

 Angola submitted the affidavit of James Myers, the Engineering Assistant 

for the City of Angola, in which Mr. Myers used Geographic Information System 

data and AutoCAD software to determine the parcels that are legally available 

for a sexually oriented business under both Ordinance 1418-2012 and 

Ordinance 1425-2012. Ordinance 1425-2012 changed the zoning district for 

sexually oriented businesses from C2 Districts to I2 Districts, included the 750 

feet residential buffer, and required that sexually oriented business structures 

be at least 1,000 feet from residential zoning districts and parcels containing 

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public gathering places, such as schools, parks, playgrounds, libraries, 

religious institutions, day care centers, or public structures, measured from 

the proposed structure to the parcel line of these land uses. Mr. Myers

concluded that twenty-nine complete parcels comprising 95.52 acres and 

twelve partial parcels comprising 14.7 acres met the criteria. Thirty-nine of the 

available parcels are located inside Angola city limits and constitute 6.61 

percent of the commercial and industrial acreage inside the City. The City has 

zoning jurisdiction over the two other parcels that are located in the extraterritorial area beyond its boundary. The total forty-one parcels contain 110.22 

acres and constitute 5.34 percent of the commercial and industrial acreage in 

Angola’s zoning jurisdiction. The City didn’t include the land available in 

Steuben County that surrounds its boundaries. Angola claims Showgirl is the 

only business seeking to open a sexually oriented business in the City and is 

the first such business to do so in decades. Under these circumstances, Angola 

argues, the supply of available sites greatly exceeds the demand and Showgirl 

has no competition seeking a similar location. Angola contends that given the 

City’s small size and population, rural location, and lack of adult businesses 

seeking sites, the available 110 acres are more than adequate. 

 BBL counters that under Ordinance 1418-2012, no land was available in 

Angola for a sexually oriented business and summary judgment on the 

sufficiency of the alternative sites is appropriate in BBL’s favor. BBL submitted 

a joint affidavit from Bruce McLaughlin, AICP, land use planner, Certified 

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Zoning Inspector, and local government consultant, and Steven Fernandez, 

CCM, Geographic Information System Analyst and Certified Cadastral Mapper. 

Mr. Fernandez performed a Geographic Information System analysis of Angola 

applying the 750 feet residential buffer of Ordinance 1418-2012 and the 

requirement of the former § 5.66 that sexually oriented businesses be 

separated from other such businesses, from residential zoning districts, from 

public gathering places, such as schools, parks, playgrounds, libraries, 

religious institutions, day-care centers, and from public structures by at least 

1,000 feet. Mr. McLaughlin and Mr. Fernandez concluded that “there is no land 

in the City of Angola that is zoned C-2 and that meets the segregation 

requirements of the Unified Development Ordinance as amended by Ordinance 

1412-2012 [sic] and prior to the effective date of Ordinance 1425-2012.” 

 Because a genuine dispute as to the number of available sites exists, 

neither party is entitled to summary judgment. The existence of adequate 

alternative sites for sexually oriented businesses is required for a contentneutral time, place, and manner regulation to pass intermediate scrutiny City 

of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986), so the disputed 

fact is therefore material to the First Amendment claim. Based on the expert 

affidavits and the expert testimony at the preliminary injunction hearing, a 

reasonable jury could return a verdict for either party. The affidavit of Angola’s 

expert doesn’t make clear whether the expert included available sites in the C2 

district, the I2 district, or both. The affidavit and testimony of BBL’s expert isn’t 

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clear as to whether the 750 feet residential buffer, the other restrictions found 

in § 5.66, or the combination of the two led to the expert’s conclusion that no 

available sites existed. 

Angola argues in its reply brief that Ordinance 1418-2012 didn’t limit 

sexually oriented businesses to the C2 District, and while technically true, the 

district requirement was instead located in the Angola Unified Development 

Ordinance § 2.35 (that was amended by Ordinance 1425-2012), in reality, a 

sexually oriented business couldn’t lawfully operate in a different zoning 

district at that time. To determine whether adequate alternative sites existed at 

the time BBL submitted its application, locations outside District C2 would be 

irrelevant. Presumably, the sexually oriented business would have been 

required to comply with all of Angola’s ordinances and not just the 750 feet 

residential buffer in the licensing and regulatory ordinance. The parties 

strongly dispute a material fact regarding the sufficiency of the alternative sites 

and summary judgment is inappropriate on this part of the plaintiffs’ First 

Amendment claim. 

C. Vested Rights 

 BBL also urges the court not to reach the alternative sites question 

because a vested right to use the property for the operation of a sexually 

oriented business would trump the ordinances and render the constitutional 

challenge irrelevant. BBL argues that summary judgment is appropriate, 

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pursuant to Federal Rule of Civil Procedure 56(f)(1), on its claim that it had a 

vested right under Indiana law to own and operate Showgirl. Rule 56(f)(1) 

allows a court to grant summary judgment for a nonmovant after giving notice 

and a reasonable time to respond. FED. R. CIV. P. 56(f)(1). 

 BBL claims that its nonconforming rights vested before Angola enacted 

the licensing and regulatory ordinance, Ordinance 1418-2012, or the Unified 

Development Ordinance amendments, Ordinance 1425-2015. “Proof of a lawful 

pre-existing nonconforming use constitutes a defense to an action alleging the 

violation of a zoning ordinance.” Wesner v. Metropolitan Dev. Comm’n of 

Marion Cnty., 609 N.E.2d 1135, 1138 (Ind. Ct. App. 1993). “A nonconforming 

use of property is a use that lawfully existed prior to the enactment of a zoning 

ordinance and continues after the ordinance’s effective date even though it 

does not comply with the ordinance’s restrictions.” Plaza Grp. Props., LLC v. 

Spencer Cnty. Plan Comm’n, 877 N.E.2d 877, 884 (Ind. Ct. App. 2007). 

Whether a business had a vested right in the property before the use of the 

property became nonconforming, and now has a right to maintain that 

nonconforming use, is an issue of state law. Id. “[W]hile construction definitely 

does establish a vested right, mere preliminary work, including filing of a 

building permit, does not. In situations falling between these two extremes, 

courts must engage in a fact-sensitive analysis to determine whether vested 

rights have accrued prior to application for a building permit or construction.” 

City of New Haven v. Flying J., Inc., 912 N.E.2d 420, 426 (Ind. Ct. App. 2009). 

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Vested rights can accrue before construction has begun or any applications are 

filed with a governmental agency. Pinnacle Media, LLC v. Metropolitan Dev. 

Comm’n of Marion Cnty., 868 N.E.2d 894, 900 (Ind. Ct. App. 2007) (citing 

Metropolitan Dev. Comm’n of Marion Cnty. v. Pinnacle Media, LLC, 846 N.E.2d 

654, 656–657 (Ind. 2006)). 

 Angola responds that the vested rights doctrine only applies to zoning 

ordinances, and no authority supports BBL’s proposition that the doctrine 

applies to licensing and regulatory ordinances, like Ordinance 1418-2012. 

Angola argues that vested rights don’t prevent a city from regulating an activity 

to promote the health, safety, and welfare of its citizens. The court agrees. In 

Uniontown Retail, a sexually oriented business violated an ordinance that 

required a sexually oriented business to obtain a license to operate and to not 

be located within 1,000 feet of a residence. 950 N.E.2d 332, 335 (Ind. Ct. App. 

2011). The business opened three days after the ordinance became effective, 

but, nonetheless, the court held that the business didn’t meet its burden of 

proving that it was operating a lawful business at the time of the ordinance’s 

adoption because of the ordinance violations. Id. at 339. The vested rights 

doctrine only applies to zoning ordinances, Plaza Grp. Props., LLC v. Spencer 

Cnty. Plan Comm’n, 877 N.E.2d 877, 884 (Ind. Ct. App. 2007), and the court 

already has decided in this opinion that the licensing and regulatory ordinance, 

Ordinance 1418-2012, isn’t a zoning ordinance. See section I., subsection B. 

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Thus, the vested rights defense only remains as to the Unified Development 

Ordinance amendments. 

 Angola next argues that BBL can’t establish a vested right because BBL 

didn’t begin construction lawfully. A nonconforming use must be lawful on the 

effective date of the zoning restriction. Uniontown Retail #36, LLC v. Board of 

Comm’rs of Jackson Cnty., 950 N.E.2d 332, 339 (Ind. Ct. App. 2011); Wesner 

v. Metropolitan Dev. Comm’n of Marion Cnty., 609 N.E.2d 1135, 1138 (Ind. Ct. 

App. 1993). A party in violation of a building permit ordinance isn’t entitled to 

lawful nonconforming use status on the property. Plaza Grp. Props., LLC v. 

Spencer Cnty. Plan Comm’n, 877 N.E.2d at 887; Bird v. Delaware Muncie 

Metro. Plan Comm’n, 416 N.E.2d 482, 487-488 (Ind. Ct. App. 1981). The 

zoning restriction that made BBL’s use of the property nonconforming – Unified 

Development Ordinance amendments – Ordinance 1425-2015, was adopted by 

the Angola Common Council on November 19, 2012. 

Angola asserts that on October 1, 2012, Mr. Twitchell saw that Showgirl 

had removed the wallboard and several studs from a load bearing wall at the 

east side of the banquet room and was constructing a new partition wall in the 

kitchen area. According to Mr. Twitchell, “[r]emoving studs from a load-bearing 

wall is an alteration that affects the structural safety and compromises the 

structural integrity of the building and is subject to Design Professional 

requirements and Design review by the Indiana Department of Fire and 

Building Services, Plan Review Division, and approval by City building code 

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officials.” Further, the new wall partition “also required Design review by the 

Indiana Department of Fire and Building Services, Plan Review Division, State 

construction design release requirements, and an Angola building permit.” BBL 

doesn’t dispute that a construction design release from the State of Indiana 

and a building permit from the City of Angola were required for BBL to lawfully 

perform the construction observed by Mr. Twitchell. 

BBL asserts that the Building Commissioner visited the premises 

constantly and he orally permitted Mr. Butler to change out the east wall and 

put up a partition wall in the kitchen area. In his affidavit, Mr. Butler stated 

that “Mr. Twitchell approved the removal of the two interior walls near the front 

(East) side of the building and installing support beams, which I have done.” 

Mr. Butler’s son, James Butler, testified at the preliminary injunction hearing 

that “we asked [Mr. Twitchell] if we could take the [east] wall down, and he 

didn’t have any problems with it,” Mr. Twitchell told the crew they did a good 

job changing out the wall, and Mr. Twitchell gave his father, Mr. Butler, 

permission to put up the partition wall. At the hearing, Mr. Butler testified that 

Mr. Twitchell approved the removal of the load bearing wall. The parties 

dispute whether Mr. Twitchell told Mr. Butler to cease work on the premises or 

verbally permitted the construction. Mr. Twitchell claims he instructed Mr. 

Butler’s employees to stop renovating the property; Mr. Butler and his son 

claim Mr. Twitchell never ordered the work to stop during any of his visits. 

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Angola claims Mr. Twitchell’s statements are irrelevant because estoppel 

doesn’t run against a government based on statements, even if erroneous, of a 

government official in the performance of governmental functions. “The 

doctrine of equitable estoppel requires three elements: (1) lack of knowledge 

and of the means of knowledge as to the facts in question, (2) reliance upon the 

conduct of the party estopped, and (3) action based thereon of such a character 

as to change his position prejudicially.” Johnson Cnty. Plan Comm’n v. Tinkle, 

748 N.E.2d 417, 419 (Ind. Ct. App. 2001). As a general rule, a governmental 

entity, such as the City of Angola, cannot be estopped by the unlawful acts of 

public officials, such as Mr. Twitchell, with one exception – when the public 

interest will be threatened. Id. at 419-420. For the City of Angola to be 

estopped from enforcing the building permit requirement against BBL due to 

Mr. Butler’s reliance on Mr. Twitchell’s alleged statements, BBL would have to 

assert the elements of estoppel and the public interest that would be 

threatened by enforcement of the requirement. BBL didn’t do so, and the court 

declines to complete the legal argument on BBL’s behalf. See White Eagle Coop. 

Ass’n v. Conner, 553 F.3d 467, 476 n.6 (7th Cir. 2009) (“[I]t is not the province 

of the courts to complete litigants’ thoughts for them.”). Although Mr. 

Twitchell’s statements are disputed, without an estoppel argument, those 

disputed facts aren’t material to this issue. 

 BBL applied for a construction design release from the State of Indiana 

on October 18, 2012 that was granted on November 15, 2012, but as of 

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September 18, 2013, BBL hadn’t applied for a building permit from the City of 

Angola. Without the building permit, BBL was, and still is, in violation of the 

building permit ordinance and couldn’t have lawfully performed the 

construction Mr. Twitchell saw on the property on October 1, 2012. On 

November 19, 2012, when the Angola Common Council adopted the 

amendments, the zoning ordinance that made the use of the property 

nonconforming, BBL was in violation of the building permit ordinance, so BBL 

isn’t entitled to lawful nonconforming use status. Plaza Grp. Props., LLC v. 

Spencer Cnty. Plan Comm’n, 877 N.E.2d 877, 887 (Ind. Ct. App. 2007). 

Accordingly, the court declines to address the parties’ arguments regarding 

whether the construction that occurred before the ordinance was enacted 

created a vested right and whether Mr. Butler’s expenditures were sufficient to 

show a vested right in the property under Indiana law. BBL isn’t entitled to 

summary judgment on its vested rights defense. 

IV. MOTION FOR PRELIMINARY INJUNCTION

The plaintiffs seek a preliminary injunction prohibiting the defendants’ 

enforcement of any ordinance that would prevent Showgirl from operating on 

the premises. “In order to obtain a preliminary injunction, the moving party 

must show that: (1) they are reasonably likely to succeed on the merits; (2) no 

adequate remedy at law exists; (3) they will suffer irreparable harm which, 

absent injunctive relief, outweighs the irreparable harm the respondent will 

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suffer if the injunction is granted; and (4) the injunction will not harm the 

public interest.” Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 

619 (7th Cir. 2004). Violation of First Amendment rights constitutes irreparable 

harm, and protecting First Amendment rights is always in the public interest. 

Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). “[I]n First 

Amendment cases, the likelihood of success on the merits will often be the 

determinative factor.” ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir. 

2012). BBL consequently focuses its argument exclusively on the merits of its 

case and asserts four arguments: the ordinances are unconstitutional either as 

content-based restrictions on speech and expression or as content-neutral 

restrictions that are not unrelated to the suppression of speech; the licensing 

and regulatory ordinance fails to provide sufficient alternative avenues of 

communication; the improvement location permit requirement and the 

ordinances are unconstitutional prior restraints on First Amendment activity; 

and BBL has a vested right to open and operate Showgirl upon the premises. 

Angola contends BBL can’t show a reasonable likelihood of success on the 

merits. 

The court addressed all four arguments in the previous discussion and 

concluded that: the ordinances are narrowly tailored content-neutral 

restrictions that were enacted to further the substantial state interest of 

preventing the negative secondary effects associated with semi-nude dancing 

establishments; a genuine dispute as to a material fact exists and neither party 

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is entitled to summary judgment on the adequacy of the alternative sites 

required for a content-neutral time, place, and manner regulation to pass 

intermediate scrutiny; neither the repealed version of § 5.66 nor § 9.05, both of 

which contain improvement location permit requirements, were prior restraints 

on the operation of a semi-nude dancing establishment; and BBL wasn’t using 

the property in a lawful nonconforming way on the date the ordinance 

amending the Unified Development Ordinance was enacted and so didn’t 

establish a vested right to open and operate Showgirl on the premises. Only the 

sufficiency of adequate alternative sites argument has any chance of success 

on the merits, and the court isn’t persuaded that BBL is reasonably likely to 

succeed on this claim based on the conflicting expert reports now before the 

court. Construction ceased at the premises in October of last year while the 

parties began this dispute regarding whether Showgirl may operate a seminude dancing establishment on the property. Maintaining that status quo until 

that question is answered, is best for both parties. In the interim, BBL will lose 

potential profits, but BBL may save construction costs on a business that 

ultimately may not be able to operate at the location. 

V. CONCLUSION

For the foregoing reasons, the court DENIES the plaintiffs’ motion for 

preliminary injunction (Doc. No. 42), DENIES the defendants’ motion for partial 

summary judgment (Doc. No. 35), DENIES the plaintiffs’ request for summary 

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judgment pursuant to Federal Rule of Civil Procedure 56(f)(1), and GRANTS in 

part and DENIES in part the defendants’ motion for judgment on the pleadings 

(Doc. No. 31). The plaintiffs’ First Amendment claim on the sufficiency of 

adequate alternative sites and claim for costs and attorney fees pursuant to 42 

U.S.C. § 1988 survive. 

 SO ORDERED. 

 ENTERED: December 31, 2013 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court 

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