Midwest Entertainment Ventures, Inc. v. Town of Clarksville, 102120 INCA, 19A-PL-2962

Docket Nº:19A-PL-2962
Opinion Judge:CRONE, JUDGE
Party Name:Midwest Entertainment Ventures, Inc. (d/b/a Theatre X), Appellant-Petitioner-Counterclaim Defendant, v. The Town of Clarksville, Planning Commission for the Town of Clarksville, and Rick Barr, Town of Clarksville Building Commissioner, Appellees-Respondents-Counterclaimants and AMW Investments, Inc., Appellant-Counterclaim Defendant,
Attorney:Attorney for Appellant Midwest Entertainment Ventures, Inc. David E. Mosley Jeffersonville, Indiana Attorney for Appellant AMW Investments, Inc. Mickey K. Weber Jeffersonville, Indiana Attorneys for Appellee Town of Clarksville C. Gregory Fifer Applegate Fifer Pulliam LLC Jeffersonville, Indiana ...
Judge Panel:Robb, J., and Brown, J., concur.
Case Date:October 21, 2020
Court:Court of Appeals of Indiana
 
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Midwest Entertainment Ventures, Inc. (d/b/a Theatre X), Appellant-Petitioner-Counterclaim Defendant,

and

AMW Investments, Inc., Appellant-Counterclaim Defendant,

v.

The Town of Clarksville, Planning Commission for the Town of Clarksville, and Rick Barr, Town of Clarksville Building Commissioner, Appellees-Respondents-Counterclaimants

No. 19A-PL-2962

Court of Appeals of Indiana

October 21, 2020

Interlocutory Appeal from the Clark Circuit Court The Honorable Vicki L. Carmichael, Judge Trial Court Cause No. 10C04-1905-PL-51

Attorney for Appellant Midwest Entertainment Ventures, Inc. David E. Mosley Jeffersonville, Indiana

Attorney for Appellant AMW Investments, Inc. Mickey K. Weber Jeffersonville, Indiana

Attorneys for Appellee Town of Clarksville C. Gregory Fifer Applegate Fifer Pulliam LLC Jeffersonville, Indiana Scott D. Bergthold Law Office of Scott D. Bergthold, PLLC Chattanooga, Tennessee

CRONE, JUDGE

Case Summary

[¶1] In this interlocutory appeal, Midwest Entertainment Ventures, Inc. (d/b/a Theatre X) (MEV), and AMW Investments, Inc. (AMW), appeal the trial court's order granting the motion for preliminary injunction filed by the Town of Clarksville, Planning Commission for the Town of Clarksville, and Rick Barr, Town of Clarksville Building Commissioner (collectively the Town). MEV and AMW argue that the trial court lacked subject matter jurisdiction to issue the preliminary injunction. AMW further argues that the trial court erred by enjoining it. Finding neither of these arguments persuasive, we affirm.

Facts and Procedural History

[¶2] MEV is an Indiana corporation doing business as Theatre X at 4505 Highway 31 East, Clarksville. AMW owns the real estate at 4505 Highway 31 East and leases the property to MEV. MEV and AMW share the same principal business address in Michigan.

[¶3] In 2018, Theatre X was operating as an adult entertainment venue pursuant to an adult business license issued to it by the Town. In October of that year, the Building Commissioner issued a notice of violation (NOV) and an order of abatement to AMW, notifying AMW that there were holes in the walls between Theatre X's viewing rooms in violation of the Town's Zoning Ordinance and requiring AMW to permanently close the holes. The NOV was sent to AMW, as the property owner of the premises, at its principal place of business in Michigan and at 4505 Highway 31 East, as well as to AMW's registered agent. AMW did not file a written statement or appeal in response to the NOV as provided by the Zoning Ordinance, including any claim that it was not the proper party in interest as the owner and/or operator of Theatre X.

[¶4] In November 2018, the Building Commissioner was granted permission by AMW's "local attorney David E. Mosley and the manager of Theatre X Joshua Jantzen" to inspect Theatre X, but the holes had not been remediated. Appellees' App. Vol. 2 at 232-33. As a result, the Building Commissioner sent AMW notice that its adult business license was suspended until the violations were cured or for a period of thirty days and that the Town was assessing civil penalties against AMW for the violations of the Zoning Ordinance. AMW did not file any written statement or appeal in response, including any claim that it was not the proper party in interest as the owner and/or operator of Theatre X. Theatre X continued operating even though its license was suspended. AMW took the necessary steps to have the holes between the viewing rooms closed up, and another inspection revealed that the required remediation had been completed. The Building Commissioner then informed AMW that the license suspension was lifted. The Building Commissioner issued an amended order to AMW, notifying AMW that the aggregate civil penalty assessed from Theatre X's zoning violations was $9100. This civil penalty has not been paid.

[¶5] In January 2019, the Town issued an adult business license to Theatre X for the calendar year 2019. In February 2019, police observed Theatre X patrons engaged in indecent acts on the premises. The Building Commissioner sent AMW notice of intent to revoke Theatre X's adult business license on the grounds that (1) Theatre X's license had been suspended during the previous twelve months, and Theatre X had knowingly operated the business while the license was suspended, and (2) Theatre X had violated the Zoning Ordinance by knowingly allowing acts of sexual intercourse, sodomy, oral copulation, masturbation, or other sex to occur in or on the premises. Counsel for MEV sent an email to the Building Commissioner informing him that the revocation notice should have been served on MEV as the actual holder of the adult business license. The Building Commissioner sent an amended notice of intent to revoke license to MEV at the same addresses at which AMW was initially served.

[¶6] In April 2019, the Clarksville Town Council held an evidentiary hearing on the revocation of Theatre X's adult business license. MEV appeared by counsel David E. Mosley. The Building Commissioner appeared with counsel, and evidence was admitted. In May 2019, the Town Council issued an order revoking MEV's adult business license, finding that Theatre X had been operating in violation of the Zoning Ordinance because Theatre X was not configured so that every manager's station had an unobstructed view, by a direct line of sight, to every area of the premises, and Theatre X management was knowingly allowing its patrons to commit indecent acts to occur on the premises. AMW's App. Vol. 2 at 53. The following month, MEV filed in the Clark Circuit Court a petition to appeal the revocation of adult business license, naming the Town, the Planning Commission, and the Building Commissioner as respondents. Id. at 37.

[¶7] In June 2019, the Town Council adopted an ordinance to regulate sexually oriented businesses (SOB Ordinance), codified in Chapter 117 of its municipal code. Id. at 119. Similar to the Zoning Ordinance, the SOB Ordinance requires the interior premises of adult theaters to be configured so that every manager's station has an unobstructed view, by a direct line of sight, to every area of the premises (except restrooms) where patrons are permitted. Id. at 127. In addition, the SOB Ordinance requires sexually oriented businesses to be closed between midnight and 6:00 a.m. Id. at 126.

[¶8] Also, in June 2019, the Town filed an answer to MEV's petition, as well as counterclaims against MEV and AMW, seeking injunctive relief under the Zoning Ordinance and the SOB Ordinance and against AMW for the unpaid civil penalties of $9100 imposed on it for the 2018 Zoning Ordinance violations. In July 2019, the Town filed a motion for a preliminary injunction, seeking to enjoin MEV and AMW from operating Theatre X in violation of the Zoning Ordinance and the SOB Ordinance. MEV and AMW each filed a motion to dismiss the Town's counterclaims and motion for preliminary injunction. The trial court held a hearing on the motions to dismiss and the Town's motion for a preliminary injunction, at which the Town presented one witness and offered three exhibits, all of which were admitted.

[¶9] In November 2019, the trial court issued an order denying MEV's and AMW's motions to dismiss. The trial court also issued an order granting the Town's motion for a preliminary injunction. The trial court entered a preliminary injunction (1) enjoining MEV and AMW from operating Theatre X unless (a) the building is configured in such a manner that every manager's station has an unobstructed view, by a direct line of sight, to every area inside the building to which any patron is permitted (excluding restrooms), (b) each manager's station is in a fixed designated location that does not exceed thirty-two square feet of floor area, and (c) an employee is on duty in a manager's station at all times any patron is on the premises; and (2) enjoining MEV and AMW from operating Theatre X between midnight and 6:00 a.m. on any day. Appealed Order at 10-11. This interlocutory appeal ensued.

Discussion and Decision

Section 1 - Our scope of review in this interlocutory appeal is limited to the order granting the preliminary injunction.

[¶10] As an initial matter, we note that MEV and AMW seem to misunderstand the scope of this interlocutory appeal. In their notices of appeal, MEV and AMW identified the order being appealed as the order granting the preliminary injunction. However, in their briefs, MEV and AMW ask this Court to vacate both the order denying their motions to dismiss and the order granting the preliminary injunction,...

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