Clarksville Ministries, LLC v. Town of Clarksville

CLARKSVILLE MINISTRIES, LLC, Plaintiff, v. TOWN OF CLARKSVILLE, INDIANA, TOWN OF CLARKSVILLE BUILDING COMMISSION, and RICK BARR in his Official Capacity as the Town of Clarksville's Building Commissioner, Defendants.

No. 4:21-cv-00135-TWP-DML

United States District Court, S.D. Indiana, New Albany Division

September 7, 2021

ENTRY ON PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Tanya Walton Pratt, Chief Judge United States District Court Southern District of Indiana

This matter is before the Court on an Emergency Motion for Temporary Restraining Order ("TRO") by Plaintiff Clarksville Ministries, LLC ("CM") (Filing No. 4). Despite its name, CM seeks to operate "an adult-oriented business that offers, to the consenting adult public, various retail items including sexually themed, but non-obscene books, magazines, videos, and other products, all for off-site consumption, as well as on-site viewing of adult-themed but non-obscene motion pictures" in Clarksville, Indiana (Filing No. 5 at 9). Although it applied to receive a license to open this establishment on August 13 2021, CM has yet to receive permission to commence business from Defendants Town of Clarksville, Indiana, Town of Clarksville Building Department, and Rick Barr, in his Official Capacity as the Town of Clarksville's Building Commissioner (collectively, the "Town"). Id. at 12. As a result, CM requests that the Court provide immediate relief. The parties submitted briefing and appeared virtually for oral argument on September 3, 2021. For the reasons discussed below, the Court grants CM's Motion.

I. DISCUSSION

CM maintains that the Town's response to CM's license application flouts Town of Clarksville Zoning Ordinance ("CZO") Subsection 60-80(A), which provides that

Upon the filing of a completed application for an Adult Business license ["ABL"] or an Adult Business employee license ["ABEL"], the Enforcement Officer shall issue a temporary license to the applicant, which temporary license shall expire upon the final decision of the Enforcement Officer to deny or grant the license. Within twenty (20) days after the receipt of a completed application, the Enforcement Officer shall either issue a license, or issue a written notice of intent to deny a license to the applicant.

(Filing No. 1-3 at 7 (emphases added)). In turn, Subsection (B) provides, in relevant part, that

The application shall be accompanied by a diagram of the premises, showing a plan thereof, specifying the location of one or more manager's stations and the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons will not be permitted.... Internal dimensions of all areas of the interior of the premises shall be noted....

Id. (emphases added). Accordingly, CM requests that the Court immediately order the Town to issue it a temporary ABL and issue employee Timothy Miller ("Miller") a temporary ABEL (Filing No. 4 at 1; see also Filing No. 1-3 at 4 (CZO § 60-50(C)(1)) ("One licensed employee shall be on duty and situated in each manager's station at all times that any patron is present inside the premises.")). The TRO request is especially timely to CM as the Town is in the process of amending pertinent ordinances in such a way that would exclude CM's location from operating as an adult business (see Filing No. 5 at 26 ("[T]he Town now seeks to amend its zoning ordinances to permanently prevent [CM]'s operation before it can even begin.").

The Town responds that CM has yet to submit a "complete" application: (1) CM has not provided the dimensions of two areas colored in green on a floorplan it provided to the Town, comprising approximately 40 individual "peep show" rooms that are enclosed with doors, and (2) CM's diagram did not specify the location of all overhead lighting fixtures in these areas, (Filing No. 19 at 8). Moreover, Miller's ABEL application is incomplete because it is missing (1) a copy of Miller's driver's license and, (2) his photograph, (Filing No. 23-1 at 1). CM's requests, then, are fatally flawed in three significant respects: (1) CM has no standing to bring this suit, (2) the dispute is not ripe, and (3) none of the proffered grounds justify a TRO (Filing No. 19 at 12-17). The Court will initially respond to the two, threshold justiciability matters before turning to the substantive TRO argument.

A. Standing

First, standing under Article III demands that "(1) the party must have personally suffered an actual or threatened injury caused by the defendant's illegal conduct; (2) the injury must be fairly traceable to the challenged conduct; and (3) the injury must be one that is likely to be redressed by a favorable decision." United Transp. v. Surface Transp. Board, 183 F.3d 606, 611 n.2 (7th Cir. 1999). The Town argues that, because CM does not at this point own the business or assets (it has not executed a pertinent purchase agreement) and does not yet hold a lease to the relevant building (it has not unconditionally executed the lease agreement), it cannot currently conduct its adult business (see Filing No. 19 at 6-9).

At the hearing, and in supporting evidence, though, CM has indicated that, in addition to expending time and money in the project, see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262 (1977) (finding standing when "it is inaccurate to say that MHDC suffers no economic injury from a refusal to rezone, despite the contingency provisions in its contract. MHDC has expended thousands of dollars on the plans for Lincoln Green and on the studies submitted to the Village in support of the petition for rezoning. Unless rezoning is granted, many of these plans and studies will be worthless even if MHDC finds another site at an equally attractive price."), it could commence business within twenty-four hours of receipt of the temporary ABL and ABEL, which have applications that are untethered to any responsive deadlines, see Zebulon Enterprises, Inc. v. DuPage Cty., Illinois, 438 F.Supp.3d 881, 890-91 (N.D.Ill. 2020) ("Zebulon alleges facts sufficient to confer standing. It alleges that the Ordinance does not require the DuPage County Sheriff to provide sex trafficking training within any definite period of time and that such training is required for both it and its employees to obtain the licenses respectively needed to conduct business and work. It follows that the sheriff could delay Zebulon's licensure by withholding training.") (emphases added).

And though the Town contends that "CM has no expectation of receiving any relief from a favorable decision" since it has not filed a "completed application", (Filing No. 19 at 8-9), the Court finds that a favorable decision would provide CM immediate and significant relief- permitting all agreements to be executed and the business to open-especially considering the Town's prior dilatory response regarding application deficiencies (see Filing No. 19-4 at 2 (indicating that CM, despite numerous earlier inquiries, was first informed of deficiencies in its August 13, 2021 ABL application on August 31, 2021)), the ease and speed in which CM can correct its supporting materials, cf. Chulchian v. City of Indianapolis, 633 F.2d 27, 34 (7th Cir. 1980) ("We cannot order the City to issue a license because the administrative process is not complete."), and the seemingly assured (and imminent) passage of a new ordinance, cf. A&P Enterprises, LLC v. City of Gulfport, No. 1:10-cv-00473-LG-RHW (S.D.Miss. Jan. 26, 2011) (dismissing case for lack of standing when, among other things, plaintiff "may have been able to submit a corrected application before the ordinance was enacted, but this is an entirely speculative assertion," and "even if this Court were to require the City to process the application, the City would be entitled to deny the application" because it was incomplete).

Finally, despite arguing that "CM does not have standing to assert the rights of" an employee seeking an ABEL (i.e., Miller), CM can only operate with a licensed employee on duty (Filing No. 1-3 at 4 ("One licensed employee shall be on duty and situated in each manager's station at all times that any patron is present inside the premises."), which imbues CM with standing to assert a claim on that employee's behalf, see Zebulon Enterprises, Inc., 438 F.Supp.3d at 890-91 ("Zebulon alleges facts sufficient to confer standing. It alleges that the Ordinance does not require the DuPage County Sheriff to provide sex trafficking training within any definite period of time and that such training is required for both it and its employees . . .") (emphasis added).

B. Ripeness

Second, "a claim is ripe when the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Marusic Liquors, Inc. v. Daley, 55 F.3d 258, 261 (7th Cir. 1995) (quotations omitted). "[W]hether a party can seek pre-enforcement review of a statute or regulation . . . appears to turn on two criteria: (1) the hardship to the plaintiff of denying pre-enforcement review and (2) the fitness of the issues for judicial review." Smith v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1141 (7th Cir. 1994). The Town contends that this matter is not yet ripe because CM and Miller have yet to provide "complete" applications.

But these deficiencies are easily remedied, as the Town has essentially conceded. Indeed, the Town at the hearing indicated that it would be compelled to issue both the ABL and ABEL upon submission of these simple corrections (see, e.g., Filing No. 19 at 10 ("[A]s of this date, the Town has not received a completed application for an adult business license from CM. The [Town] has not issued a...