A Terre Haute ordinance on adult venues allows for unfettered governmental discretion in violation of the First Amendment, according to a federal judge.
Judge James R. Sweeney of the U.S. District Court for the Southern District of Indiana on Nov. 24 ordered a preliminary injunction preventing enforcement of the city's zoning ordinance for adult venues.
The ruling comes in a federal lawsuit Mike Bickers filed against the city’s Board of Zoning Appeals (BZA).
“Terre Haute's ordinance confers on the BZA unfettered discretion to grant or deny permits for adult- oriented businesses,” Sweeney wrote in entering the injunction.
The judge said the U.S. Supreme Court most often has viewed zoning and licensing laws that impact speech as time, place, and manner regulations.
The judge noted that 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.
‘It is beyond dispute that nude dancing is protected expression, if only at the First Amendment's outer scope or bounds, Sweeney wrote.
“Because the permit scheme controlling adult businesses seeking to operate in Terre Haute confers unfettered discretion on the City and lacks time limits for decision, Bickers is likely to prevail on the merits of his claim that the ordinance is facially invalid as it relates to adult businesses,” Sweeney wrote.
Sweeney stated the property at issue met all technical requirements, but the permit was still denied under factors that were “value laden and susceptible to wide and varying differences of opinion.”
On June 5, 2019, the Board of Zoning Appeals denied a special use permit Bickers had sought for property at 3295 N. Fruitridge Avenue for an adult-oriented business on the city’s northeast side, citing Bickers request did not have a specific use though several uses for adult venues are listed in the city’s ordinance.
The Vigo County Area Planning Department recommended the permit be granted, but the zoning board unanimously denied the request. It cited the businesses proximity to Terre Haute North Vigo High School athletic fields and to the Sony DADC plant.
The board also heard public testimony against the proposed use, including a petition with more than 200 signatures.
Bickers then filed a lawsuit in Vigo County, which was dismissed as untimely. He then filed in federal court, bringing First Amendment challenges to the city’s business zoning ordinance.
Bill Treadway, president of the BZA, said Monday the board is consulting with legal counsel on what this means for the board.
“What I got from the judge is that it is a weak ordinance and does not meet the Constitutional test. However, the board acted appropriately given the ordinance that was before us,” said Treadway, who had testified for the board in the federal lawsuit.
“We applied the ordinance as was written. We don’t write the ordinance and did not have input in writing the ordinance,” Treadway said. “We did our job as we were supposed to, and I think the board acted appropriated completely to the letter of the law, but the ordinance we are operating under is defective,” according to the federal judge, Treadway said.
City Attorney Eddie Felling said the judge’s order likely means the city will have to rewrite its ordinance.
“We are going to have to do something with the ordinance based upon that order,” Felling said. “No matter what, we have to take a serious look at it to make sure we don’t end up even in a questionable situation like this in the future.”
Felling said the judicial order “makes it clear that we are going to have to spend some time with the ordinance on our end and with (Vigo County) Area Planning. Since it is part of the zoning ordinance, both the city and county will have to have some cohesion as far as moving forward with any changes.
“It is not what we wanted at this point, but will deal with it and act accordingly,” Felling said.
The city attorney said it is unclear if the city would have to go through a new process for a permit or if the adult business automatically could “open tomorrow” should Bickers decide to open the business.
A telephone message seeking comment was left Monday with Bicker’s attorney in the case, Mark C. Webb of the Indianapolis law firm Voyles Vaiana Lukemeyer Baldwin & Webb.
Felling added the federal lawsuit “is not over yet. Whether or not there is an appeal (from the city) in the interim is really whether or not (Bickers) decides to move forward.”
Felling said the lawsuit also has a question of damages that must be decided.
“The irony of this whole thing is that (Bickers) may be lucky it was denied to begin with, (now) knowing what was around the corner with this pandemic,” Felling said.
“Even if the judge turns around and says the whole thing is absolutely unconstitutional and you can’t enforce it, just finding that doesn’t necessarily mean that (Bickers) is going to be entitled to anything from a damages perspective,” Felling said.