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Nude Dancing? Not in Our Town! 7th Cir. Denies Owner's Relief

By Jonathan R. Tung, Esq. | Last updated on

When Alva and Sandra Butler purchased a restaurant in Angola, Indiana, they had big plans to convert the venue into a nude dancing bar. Curiously, within days of buying the place, the city amended its zoning laws such that nude dancing would violate use restrictions...

Rather than alleging any taking by the government, the couple opted to raise a First Amendment violation and various other violations under Indiana law. After having their first petition for injunction denied, the Circuit seems to have taken a "hands off" approach.

The Butlers' Business Plans

The Butlers submitted a winning bid to purchase restaurant property in Angola, Indiana. With it came a liquor license and the adjacent lot. They planned their business to feature "clothed" female dancing. And by "clothed" they mean "pasties and a g-string."

Angola had a zoning ordinance against sexually oriented businesses that potentially affected the Butler's business because it imposed a 1,000 foot radius on such business, requiring them to be at least that distance from public gathering places, residential districts and each other. The Butlers called the City Attorney to get a confirming green light.

The zoning authority said no. The Butlers pressed the issue and closed the purchase. Then Angola modified its zoning ordinances that required all sexually oriented business to be at least 750 from any residence. Suit followed. But instead of going the obvious route of a takings argument, the Butlers tried a different strategy.

District Court Judge's Omnibus Order

The Butlers were seeking an injunction, which was denied them. They then filed an interlocutory appeal under 28 U.S.C. sec. 1292(a)(1) -- in essence almost like an appeal of a denial of appeal. The district court judge authored a 73-page omnibus order that addressed almost every motion pending in court at the time including motions by the city to enter judgments on several aspects relating to the First Amendment claims. The judge granted some and left others alone. In the view of the circuit later, this was permissible -- even though there was debate as to whether or not such a move was a "judgment" under the FRCP.

Upon review, the circuit found that the omnibus order section that denied preliminary injunctive relief was proper. Therefore, the Butlers must seek relief in a different manner down the road.

BBL's waiver

What was notable in this "decision" -- if that's the right word -- is that the Butler's decision not to contest the city's evidence that sexually-oriented businesses led to negative secondary effects to the neighborhood killed any possibility for them to argue the point later on under the issue preclusion.

If nothing else, this bodes well for the city in keeping nude dancing out of sight for Angola residents.

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