Fort Wayne cabaret clubs lose appeal against city ordinance

Several Fort Wayne adult cabarets could not convince the Indiana Court of Appeals that an ordinance proposed by the city would pose irreparable harm to their businesses if enforced.

In August 2019, the city of Fort Wayne passed Fort Wayne Ordinance No. G-19-19, regulating “sexually oriented businesses” including “adult cabarets.” The Fort Wayne City Council adopted the ordinance, which was intended to “protect and preserve the health, safety, and welfare” of both patrons of sexually oriented businesses and “citizens of the City[.]”

Specifically, language at issue in the instant appeal holds that, “No person shall knowingly or intentionally, in a sexually oriented business, appear in a semi-nude condition unless the person is an employee who, while semi-nude, remains at least six (6) feet from all patrons and on a stage at least eighteen (18) inches from the floor in a room of at least six hundred (600) square feet.”

 A series of local businesses, including Showgirl I, Showgirl III and Brandy’s Lounge, objected and filed a complaint against the city, asserting the ordinance ran afoul of Indiana Code § 7.1-3-9-6 and was preempted by Indiana Code § 36-1-3-8(a)(7).

The plaintiffs argued, among other things, that the ordinance “‘impermissibly regulates, restricts and limits the operation’ of their businesses in several ways in violation of the statute, including requiring the Nightclubs ‘to undertake extensive and costly remodeling of their permit premises’ to satisfy the six-foot spacing requirement; ‘diminish[ing] the number of patrons that their businesses can accommodate and thus reduce the audience’; and requiring ‘that an Operator of the business be present in the same room whenever a semi-nude performance is taking place.’”

The Allen Superior Court, however, denied the nightclubs’ request for a preliminary injunction and granted the city’s request for a preliminary injunction, finding the nightclubs failed to prove a reasonable likelihood of success at trial.

The Indiana Court of Appeals affirmed Thursday in the case of B&S of Fort Wayne, Inc., d/b/a Showgirl I; Showgirl III, Inc., d/b/a Showgirl III; and JCF, Inc., d/b/a Brandy’s Lounge v. City of Fort Wayne, Indiana, 20A-MI-466, finding the trial court did not err.

The appellate court first agreed with the trial court’s interpretation of Indiana Code § 7.1-3-9-6, noting the appellate court had previously held that the zoning ordinance was not prohibited by the statute’s predecessor.

“Likewise, here, nothing in the ordinance either directly or indirectly regulates, restricts, enlarges, or limits the operation or business of the Nightclubs’ permits to sell alcohol,” Judge Edward Najam wrote for the appellate panel. “We therefore hold that the ordinance does not violate Indiana Code Section 7.1-3-9-6. The trial court did not err when it concluded that the Nightclubs have not shown a likelihood of success at trial on this issue.”

The panel likewise found the nightclubs to be incorrect in their assertion that the ordinance is preempted by Indiana Code § 36-1-3-8(a)(7) of the Home Rule Act. It also disagreed with their argument that the state has occupied the field with respect to regulating adult entertainment, including adult cabarets.

Lastly, the appellate court concluded nothing in the ordinance restricts the size of the nightclubs’ audiences. It also found the trial court did not err when it concluded the nightclubs did not show a likelihood of success at trial on their claim that the ordinance violates their First Amendment rights, as set out in Justice Anthony Kennedy’s concurring opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 444 (2002) (Kennedy, J., concurring).

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