Bickers v. Saavedra

• Decision Date: 24 November 2020
• Docket Number: No. 2:20-cv-00219-JRS-DLP,2:20-cv-00219-JRS-DLP
• Parties: Mike BICKERS, Plaintiff, v. Jason SAAVEDRA, Bill Treadway, Paul Clapp, John Collett, Jeff Ford, City of Terre Haute, City of Terre Haute Board of Zoning Appeals, Defendants.
• Court: U.S. District Court — Southern District of Indiana

502 F.Supp.3d 1354

Mike BICKERS, Plaintiff,

v.Jason SAAVEDRA, Bill Treadway, Paul Clapp, John Collett, Jeff Ford, City of Terre Haute, City of Terre Haute Board of Zoning Appeals, Defendants.

No. 2:20-cv-00219-JRS-DLP

United States District Court, S.D. Indiana, Terre Haute Division.

Signed November 24, 2020

J. Michael Murray, Pro Hac Vice, William C. Livingston, Pro Hac Vice, Berkman Gordon Murray & DeVan, Cleveland, OH, Mark C. Webb, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, IN, for Plaintiff.

Jacob H. Miller, Mark Douglas Hassler, Hunt Hassler Lorenz Kondras LLP, Terre Haute, IN, for Defendants.

Order on Motion for Preliminary Injunction (ECF No. 6)

JAMES R. SWEENEY II, JUDGE

Plaintiff Mike Bickers owns the property at 3295 North Fruitridge Avenue (the "Property") in Terre Haute, Indiana. Bickers sought but was denied a special use permit to operate an adult business there. He sued the City of Terre Haute Board of Zoning Appeals ("BZA"), the members of the BZA, and the City of Terre Haute (collectively, "Terre Haute" or "City"), challenging the zoning and licensing scheme that regulates the permitted locations of adult businesses. Bickers now moves for a preliminary injunction. (ECF No. 6.) For the following reasons, the motion is granted.

I. Legal Standard

To obtain a preliminary injunction, a plaintiff must show (1) that he will suffer irreparable harm absent preliminary relief; (2) that traditional legal remedies are inadequate; and (3) that he has "some" likelihood of success on the merits. Mays v. Dart , 974 F.3d 810, 818 (7th Cir. 2020) (citing Speech First, Inc. v. Killeen , 968 F.3d 628, 637 (7th Cir. 2020) ). If the plaintiff proves these elements, "the court next must weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one." Courthouse News Serv. v. Brown , 908 F.3d 1063, 1068 (7th Cir. 2018). Under the Seventh Circuit's "sliding scale" approach, "the more likely the plaintiff is to win on the merits, the less the balance of harms needs to weigh in his favor, and vice versa." Mays , 974 F.3d at 818 (citing Ty, Inc. v. Jones Grp., Inc. , 237 F.3d 891, 895 (7th Cir. 2001) ).

II. Background

In 2006, the Common Council of the City of Terre Haute amended its zoning code as it relates adult businesses hoping to operate within the City. (Ex. 2 at 1.) The Council stated the amended ordinance's goal of "prevent[ing] intensification of negative secondary effects and harmful effects upon minors" without "impos[ing] a limitation nor restriction on the contents of any communicative materials." (Id. ) The ordinance establishes technical standards for any prospective adult business and requires that such businesses obtain two permits from the City before operating: a special use permit and an adult oriented business permit. The provisions of the ordinance are explained in greater detail below.

In June 2018, Bickers bought the Property—located in the City's M-2 zoning district—intending to open an adult cabaret or, in common parlance, a strip club. (Compl. ¶ 26, ECF No. 5.) It is undisputed that the Property is in a permissible zone and satisfies the separation requirements of the ordinance. (Exs. 12, 28–29.) Bickers applied for a special use permit on March 29, 2019. (Ex. 1.) After reviewing the Property, BZA staff recommended that the special use be granted. (Ex. 28.) The BZA held a hearing about Bickers's proposed adult business on June 5, 2019. (Ex. 21.) At the hearing, the BZA criticized Bickers's site plan and his application's failure to specify which of nine categories of adult businesses Bickers planned to open. (Ex. 21 at 11–18.) The BZA also heard from several members of the community, who voiced strong objections to a strip club opening at the Property. Notably, a representative of major local employer Sony DADC, housed across the street from the Property, expressed concerns about Bickers's proposed adult business deterring prospective employees and employers looking to locate nearby. (Ex. 21 at 25–40.) A pastor discussed the moral degradation of the city and objectification of women. (Ex. 21 at 40–44.) And, the superintendent of Vigo County schools complained that the strip club would be a bad influence on Terre Haute North Vigo High School students interning at businesses close by. (Id. at 44–47.) Ultimately, at the end of the hearing, the BZA unanimously denied Bickers's application for a special use permit. (Ex. 28.) The Board's findings of fact justified the denial by pointing to the Property's one-mile proximity to the ball fields of Terre Haute North Vigo High School and its 500-foot proximity to Sony DADC. (Ex. 28.) Because Bickers failed to obtain a special use permit, he did not apply for the second permit required of adult businesses in Terre Haute, the adult oriented business permit. He sought judicial review of the BZA's decision, as the ordinance allows, but his state-court suit was denied as untimely. (Ex. 3; Compl. ¶ 33, ECF No. 5.)

Bickers then sued the City, the BZA, and the members of the BZA under 42 U.S.C. § 1983, bringing both as-applied and facial challenges to the City's zoning ordinance insofar as it regulates adult businesses. He now seeks a preliminary injunction against the City. (ECF No. 6.)

III. Discussion

Because a plaintiff's likelihood of success on the merits significantly impacts the other prongs of the preliminary-injunction inquiry in First Amendment cases, the bulk of the Court's analysis will focus on whether Bickers has demonstrated a likelihood of success on the merits. See, e.g., ACLU of Ill. v. Alvarez , 679 F.3d 583, 589 (7th Cir. 2012) ("[I]n First Amendment cases, ‘the likelihood of success on the merits will often be the determinative factor.’ " (citation omitted)); Korte v. Sebelius , 735 F.3d 654, 666 (7th Cir. 2013).

A. Likelihood of Success on the Merits

According to Bickers, the ordinance is unconstitutional for four reasons. First, he says it amounts to a prior restraint because it grants the BZA unfettered discretion in deciding whether to grant or deny a special use. Second, he contends that the ordinance operates as an illegal prior restraint because it does not circumscribe the BZA's time for decision. Third, he claims the ordinance does not leave enough alternative avenues for communication. And, fourth, he challenges as an unconstitutional prior restraint Terre Haute's requirement that adult businesses obtain a second permit from the City's Board of Public Works. These are persuasive arguments, and Bickers has demonstrated a likelihood of success on the merits of a facial challenge to the City's zoning and licensing scheme as it relates to adult businesses.

1. Applicable Legal Rule

The first issue is what legal rule governs the Court's analysis of Terre Haute's adult business licensing scheme.

Most often, the Supreme Court has viewed zoning and licensing laws that impact speech as time, place, and manner regulations. A time, place, and manner regulation is subject to intermediate scrutiny, passing muster under the First Amendment only if the challenged law (1) serves a "substantial governmental interest," such as combatting harmful secondary effects of speech, (2) is narrowly tailored to serve that interest, and (3) "allows for reasonable alternative avenues of communication." BBL, Inc. v. City of Angola , 809 F.3d 317, 327 (7th Cir. 2015) (quoting City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) ); see also City of Los Angeles v. Alameda Books, Inc. , 535 U.S. 425, 440–41, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002).

But where a zoning or licensing scheme involves unfettered governmental discretion, the Supreme Court has also employed a prior-restraint analysis. See Graff v. City of Chicago , 9 F.3d 1309, 1335 (7th Cir. 1993) (Ripple, J., concurring) (determining after a thorough reading of precedent that the "presence of unfettered discretion" renders a licensing scheme subject to prior-restraint analysis rather than only Renton -type scrutiny), cert. denied , 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 464 (1994) ; see also Forsyth Cnty. v. Nationalist Movement , 505 U.S. 123, 130–31, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("A government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." (internal quotation marks omitted)). "Prior restraints are not per se unconstitutional" but "are highly disfavored and presumed invalid." Weinberg v. City of Chicago , 310 F.3d 1029, 1045 (7th Cir. 2002) (citing New York Times Co. v. United States , 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) ). "They are permissible if, and only if, there are procedural safeguards that ensure that the decisionmaker approving the speech does not have ‘unfettered discretion’ to grant or deny permission to speak." Six Star Holdings, LLC v. City of Milwaukee , 821 F.3d 795, 799 (7th Cir. 2016) (citations omitted).

The ordinance challenged here must be viewed and analyzed not only as a time, place, and manner regulation, but also as a prior restraint. Unlike the zoning laws challenged in Renton , which imposed only objective separation rules,¹ Terre Haute's ordinance confers on the BZA unfettered discretion to grant or deny permits for adult-oriented businesses. See infra Part III.A.3. Thus, this Court will first examine whether the ordinance contains the procedural safeguards necessary of prior restraints; if it does, the Court will then examine whether the ordinance survives scrutiny as a time, place, and manner regulation under Renton and its progeny. See FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (not reaching issue of whether Dallas's adult-business regulations were valid time, place, and manner regulations because prior-restraint analysis...