BBL, INC ., ALVA J. BUTLER , and SANDRA K. BUTLER v. City of Angola, Dean Twitchell

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1199
BBL, I NC ., A LVA J. BUTLER , and
S ANDRA K. BUTLER ,
Plaintiffs-Appellants,
v.
C ITY OF A NGOLA, D EAN TWITCHELL,
in his official capacity, and
VIVIAN LIKES, in her individual capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:13-CV-76-RLM-RBC — Robert L. Miller, Jr., Judge.
____________________
A RGUED NOVEMBER 4, 2014 — DECIDED D ECEMBER 7, 2015
____________________
Before M ANION , WILLIAMS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Alva and Sandra Butler and their
company, BBL, Inc. (we’ll refer to them collectively as
“BBL”), purchased a restaurant in the City of Angola,
Indiana, and planned to convert it to an adult-entertainment
venue featuring nude dancing. Within days of the purchase,

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2 No. 14-1199
Angola amended its zoning and other ordinances to make
this use of the property impossible. The Butlers and their
company brought this suit alleging claims for violation of
their rights under the First Amendment and Indiana law.
They moved for a preliminary injunction. The district court
denied the motion, and the plaintiffs took this interlocutory
appeal seeking review of that decision. See 28 U.S.C.
§ 1292(a)(1) (authorizing interlocutory appeal of orders
granting or denying injunctive relief).
The appeal is a procedural and substantive tangle. The
judge denied the preliminary-injunction motion in a brief
discussion at the end of a 73-page omnibus order addressing
multiple motions then pending before the court. Included in
the package of motions was a request by the City for judg-
ment on the pleadings on certain parts of the legal test
applicable to BBL’s First Amendment claim. The judge
granted this motion, leaving the final step in the First
Amendment analysis for later decision. That approach was
unusual; we question whether “judgment” on the pleadings
can be granted on intermediate steps in a doctrinal test. This
procedural step affected the judge’s decision on the prelimi-
nary-injunction motion.
Still, the judge was right to deny the motion. At the pre-
liminary-injunction hearing, BBL made a tactical decision not
to contest the City’s evidence that the challenged ordinances
were designed to reduce the negative secondary effects of
adult-entertainment establishments. BBL thus stipulated
away the key factual issue in the analysis of the First
Amendment claim. To the extent that the preliminary-
injunction motion was premised on the state-law claims, the
judge also correctly denied it.

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No. 14-1199 3
BBL attacks other aspects of the judge’s omnibus order,
but our jurisdiction is limited to the denial of preliminary
injunctive relief. On that issue, we affirm.
I. Background
On August 9, 2012, Alva and Sandra Butler submitted the
winning bid and a nonrefundable deposit to purchase a
restaurant property located at 310 West Wendell Jacob
Avenue in the City of Angola. The purchase also included
the restaurant’s liquor license and an adjoining lot. The
Butlers and their company, BBL, Inc., planned to convert the
restaurant to a “liquor-licensed food and beverage serving
venue … that presents to consenting adult patrons clothed
female performance dance entertainment.” The reference to
“clothed” female dancing is misleading; the dancers would
wear only “pasties and a g-string,” in keeping with Indiana’s
public-indecency statute. See Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991) (upholding the constitutionality of the
statute). This new adult-entertainment venue would be
called “Showgirl.”
The zoning ordinance then in effect in Angola was prom-
ulgated in 2008 and permitted “sexually oriented business-
es” to locate in medium-to-large commercial districts. The
2008 ordinance also required businesses in this category to
locate at least 1,000 feet away from public gathering places,
residential districts, and each other. Finally, the 2008 ordi-
nance required that any new sexually oriented business
obtain an Improvement Location Permit. This prerequisite
overlaps a provision in Angola’s Unified Development
Ordinance that requires all property owners to obtain an
Improvement Location Permit before making any change in
land use.

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4 No. 14-1199
The parties agree that the property in question is located
in a medium-to-large general commercial district. If every-
thing went as the Butlers planned, Showgirl would be the
first sexually oriented business in Angola.
On August 16, 2012, the Butlers contacted City Attorney
Kim Shoup to confirm that Showgirl would be able to oper-
ate at this location under the City’s zoning laws. The Com-
mon Council quickly instructed Shoup to research the scope
of permissible regulation of sexually oriented businesses. On
August 23 Angola’s zoning administrator, Vivian Likes,
replied by letter to the Butlers’ inquiry, stating that this use
was not permitted under the 2008 ordinance because a
public gathering place was located within 1,000 feet of the
property. On September 10 Likes clarified that the public
gathering place in question was a proposed Steuben County
Multi-Use Trail, on which construction would begin in the
spring of 2013.
The Butlers thought Likes was mistaken about the legal
effect of the proposed trail because none of the trail heads
would be within 1,000 feet of the property and other parts of
the trail weren’t “public gathering places” within the mean-
ing of the ordinance. So they pressed on with their plan and
closed on the property on September 11, 2012.
Angola reacted to this turn of events by changing its zon-
ing and regulatory ordinances for sexually oriented busi-
nesses. On September 17 the Common Council adopted
Angola Ordinance No. 1418-2012, entitled An Ordinance
Establishing Licensing Requirements and Regulations for Sexually
Oriented Businesses within the City of Angola, Indiana. This
ordinance began with several pages of citations to court
cases and studies regarding the negative secondary effects of

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No. 14-1199 5
sexually oriented businesses. Next came three specific
factual findings:
(1) Sexually oriented businesses … are associ-
ated with a wide variety of adverse secondary
effects including, but not limited to, personal
and property crimes, prostitution, potential
spread of disease, lewdness, public indecency,
obscenity, illicit drug use and drug trafficking,
negative impacts on surrounding properties,
urban blight, litter, and sexual assault and ex-
ploitation.
(2) Sexually oriented businesses should be sep-
arated from sensitive land uses to minimize the
impact of their secondary effects upon such us-
es, and should be separated from other sexual-
ly oriented businesses, to minimize the sec-
ondary effects associated with such uses and to
prevent an unnecessary concentration of sex-
ually oriented businesses in one area.
(3) Each of the foregoing negative secondary
effects constitutes a harm which the City has a
substantial government interest in preventing
and/or abating. … [T]he City’s interest in regu-
lating sexually oriented businesses extends to
preventing future secondary effects of either
current or future sexually oriented businesses
that may locate in the City. The City finds that
the cases and documentation relied on in this
ordinance are reasonably believed to be rele-
vant to said secondary effects.

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6 No. 14-1199
The new licensing ordinance imposed a host of require-
ments on sexually oriented businesses, but only one is
relevant here. Section 19 requires sexually oriented business-
es to be located “at least 750 feet from every residence.” It’s
undisputed that BBL’s property doesn’t meet this require-
ment.
On November 12 the Angola Plan Commission recom-
mended that the Common Council amend the 2008 zoning
ordinance to remove sexually oriented businesses as a
permitted use in commercial districts and move them to
moderate-intensity industrial districts. In addition, to bring
the zoning code into conformity with the new licensing and
regulatory ordinance for sexually oriented businesses, the
Commission recommended adding an identical requirement
of a 750-foot buffer zone from any residence. The preexisting
dispersal requirement—requiring sexually oriented busi-
nesses to be located at least 1,000 feet from residential dis-
tricts, public gathering places, and each other—was retained.
Finally, the Commission recommended repealing the specif-
ic requirement in the 2008 ordinance that sexually oriented
businesses obtain an Improvement Location Permit. The
generally applicable provision requiring all property owners
to obtain an Improvement Location Permit before making
any change in land use would remain in place.
On November 19 the Common Council adopted the
Commission’s recommendations as Ordinance No. 1425-
2012, An Ordinance Amending the Unified Development Ordi-
nance with Respect to the Regulation of Sexually Oriented Busi-
nesses. The new zoning ordinance contains a list of justifica-
tions substantially similar to those in the new licensing and
regulatory ordinance described above.

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No. 14-1199 7
As this regulatory and rezoning activity was occurring,
BBL began some limited construction at the property, in-
cluding resurfacing the parking lot, reroofing the building,
and taking care of miscellaneous maintenance tasks. During
this time, Angola’s building commissioner, Dean Twitchell,
visited the property several times. He told the Butlers that
installing new roofing material and demolishing interior
non-load-bearing walls wouldn’t require a permit. But on
October 1 he ordered the Butlers to stop work when he
noticed that a load-bearing wall was being dismantled and a
new partition wall installed. This type of construction could
only take place pursuant to a “construction design release”
from the State of Indiana and a building permit from the
City. At this point the Butlers halted their construction
efforts. By this time they had invested at least $456,000 into
the project, including $175,000 for the property, $90,000 for
the front parking lot, and $85,000 for the liquor license.
BBL requested and received the required construction
design release from the State but never applied for a build-
ing permit from Angola. On November 7, 2012, BBL submit-
ted an application to the City for a license to operate a
sexually oriented business, as required by the new licensing
and regulatory ordinance. BBL also applied for an Im-
provement Location Permit, a prerequisite for any change in
land use in the City. By letter dated November 26, Twitchell
denied the license application because BBL proposed to
locate Showgirl within 750 feet of parcels containing resi-
dences. BBL appealed this decision to a hearing officer and
lost. Soon after, Likes responded to BBL’s application for an
Improvement Location Permit. She said the permit couldn’t
be issued because the application was incomplete—and in

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8 No. 14-1199
any case it would likely be denied because the property was
within 750 feet of parcels containing residences.
In March 2013 BBL sued the City of Angola, Twitchell,
and Likes in federal court alleging claims under 42 U.S.C.
§ 1983 and state law. (We’ll refer to the defendants collec-
tively as “the City” unless the context requires otherwise.)
The complaint is lengthy—48 pages and 262 numbered
paragraphs—and is organized into seven separate counts.
Counts I and II allege that the City violated state-law re-
quirements for zoning ordinances. Count III alleges that the
City violated Indiana’s liquor laws by limiting the operation
of a business holding a liquor license. Count IV alleges that
requiring a sexually oriented business to obtain an Im-
provement Location Permit constitutes an unlawful prior
restraint on speech in violation of the First Amendment.
Count V alleges more generally that the 2012 zoning and
licensing amendments—in particular, the new provisions
requiring a 750-foot buffer zone from any residence—violate
the First Amendment. The final two counts are not really
separate substantive claims: Count VI alleges that Likes is
liable in her individual capacity, and Count VII requests an
award of attorney’s fees under 42 U.S.C. § 1988. The com-
plaint seeks declaratory and injunctive relief and damages.
Before the defendants answered the complaint, BBL filed
an even longer amended complaint—168 pages and
1,046 paragraphs—adding reams of factual material in
response to the secondary-effects caselaw and data the City
cited in promulgating the new ordinances. The City moved
to strike the amended complaint. A magistrate judge granted
this motion and reinstated the original complaint.

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No. 14-1199 9
The City then moved for partial judgment on the plead-
ings. See F ED. R. C IV. P. 12(c). The motion was peculiar in that
it was directed at the state-law claims, the prior-restraint
claim, and certain elements of the doctrinal test applicable to
the First Amendment claim. We’ll elaborate on this point in
a moment, but for now it’s enough to say that the applicable
legal test derives from the Supreme Court’s opinions in City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and City
of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), and
generally requires the City to show that (1) the challenged
zoning requirements are aimed at reducing the negative
secondary effects of adult-entertainment establishments; (2)
the requirements are narrowly tailored to serve to that
purpose: and (3) the zoning scheme leaves open reasonable
alternative sites for this form of expression. The City’s
Rule 12(c) motion asked for judgment on the pleadings on
steps one and two in the Renton/Alameda Books analysis. By
separate motion filed two weeks later, the City sought
summary judgment on step three.
In due course BBL filed the preliminary-injunction mo-
tion on which this appeal is based. BBL also asked the court
to consider granting summary judgment in its favor as the
nonmoving party under Rule 56(f)(1) of the Federal Rules of
Civil Procedure. The district court held hearings and even-
tually issued a single lengthy decision addressing this bevy
of motions. The judge granted judgment on the pleadings for
the City on the state-law claims, the prior-restraint claim,
and the first two elements of the Renton/Alameda Books test.
The judge denied the City’s motion for summary judgment
on step three of the Renton/Alameda Books analysis—the
adequacy of alternative sites for this expressive activity—
and declined BBL’s request for summary judgment under

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10 No. 14-1199
Rule 56(f)(1). Finally, in a brief two-page discussion, the
judge denied BBL’s motion for a preliminary injunction.
Two issues thus remain open in the district court: the ade-
quacy of the alternative sites for adult-entertainment estab-
lishments in the City and attorney’s fees (should BBL prevail
on the merits).
The City moved for reconsideration, but the judge denied
the motion. Pursuant to § 1292(a)(1), BBL filed this interlocu-
tory appeal.
II. Discussion
Section 1292(a)(1) limits our review to the district court’s
denial of the motion for a preliminary injunction. The judge’s
rulings on the other motions—for partial judgment on the
pleadings, summary judgment, and to strike the amended
complaint—are not before us except to the extent that the
judge’s analysis of those motions affected his decision to
deny preliminary injunctive relief.
To obtain a preliminary injunction, the moving party
must make an initial showing that (1) it will suffer irrepara-
ble harm in the period before final resolution of its claims;
(2) traditional legal remedies are inadequate; and (3) the
claim has some likelihood of success on the merits. Girl
Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am.,
Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the moving party
makes this showing, the court weighs the factors against one
another, assessing whether the balance of harms favors the
moving party or whether the harm to other parties or the
public is sufficiently weighty that the injunction should be
denied. ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir.
2012).

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No. 14-1199 11
The issues on this appeal relate solely to BBL’s likelihood
of success on the merits. We review the district court’s denial
of a preliminary injunction for abuse of discretion, although
legal issues are reviewed de novo. Girl Scouts of Manitou
Council, 549 F.3d at 1086.
A. First Amendment Claims
The heart of BBL’s case is its claim that the City’s actions
violated its right to expression under the First Amendment.
As we’ve noted, BBL actually makes two First Amendment
claims: (1) the 2012 licensing and zoning amendments
violate its right to expressive conduct; and (2) the permit
requirement is an impermissible prior restraint on speech.
The second claim is quite straightforward so we’ll resolve
it first. The City’s requirement that sexually oriented busi-
nesses obtain an Improvement Location Permit was removed
in the 2012 zoning amendments, so any challenge to that
provision is moot, as the district court correctly concluded.
See, e.g., Fed’n of Advert. Indus. Representatives, Inc. v. City of
Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (“[R]epeal of a
contested ordinance moots a plaintiff’s injunction request,
absent evidence that the City plans to or already has reen-
acted the challenged law or one substantially similar.”).
What remains is the City’s preexisting zoning rule that all
property owners seeking to make any change of land use
must secure an Improvement Location Permit. Because this
requirement is generally applicable and doesn’t discriminate
based on the content of speech, it lacks a “close enough
nexus to expression” for us to entertain a facial challenge
under the First Amendment. See City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 759, 761 (1988) (“[A] law

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12 No. 14-1199
requiring building permits is rarely effective as a means of
censorship.”).
BBL doesn’t have grounds to challenge the permit re-
quirement as applied either. As the district court correctly
noted, the City relied on reasons unrelated to speech or
expression in denying BBL’s application for an Improvement
Location Permit: (1) the application was incomplete; and
(2) a complete Improvement Location Permit application
would likely be denied based on the 750-foot distance re-
quirement from residential parcels. Regarding the latter
reason—the substantive one—the City’s use of a permit
requirement to enforce its zoning laws is not itself problem-
atic. To get anywhere, BBL must have some likelihood of
success on its claim that the 2012 licensing and zoning
amendments—more specifically, the 750-foot residence
buffer-zone requirement—is invalid. We therefore concen-
trate our attention on BBL’s challenge to the validity of the
2012 licensing and zoning amendments.
Before proceeding, however, we pause to note a potential
procedural problem in the manner in which the parties and
the district court approached this claim. To begin, they split
a single claim into multiple components based on the ele-
ments of the applicable constitutional test. The judge then
granted the City’s motion for judgment on the pleadings on
certain elements of that single claim. There’s reason to
question this approach.
“A motion for judgment on the pleadings under
Rule 12(c) of the Federal Rules of Civil Procedure is gov-
erned by the same standards as a motion to dismiss for
failure to state a claim under Rule 12(b)(6).” Adams v. City of
Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014). A motion to

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No. 14-1199 13
dismiss under Rule 12(b)(6) doesn’t permit piecemeal dis-
missals of parts of claims; the question at this stage is simply
whether the complaint includes factual allegations that state
a plausible claim for relief. Fortres Grand Corp. v. Warner Bros.
Entm’t Inc., 763 F.3d 696, 700 (7th Cir. 2014) (quotation marks
omitted) (applying Rule 12(b)(6)).
Summary judgment is different. The Federal Rules of
Civil Procedure explicitly allow for “[p]artial [s]ummary
[j]udgment” and require parties to “identif[y] each claim or
defense—or the part of each claim or defense—on which sum-
mary judgment is sought.” F ED. R. CIV. P. 56(a) (emphasis
added). At the summary-judgment stage, the court can
properly narrow the individual factual issues for trial by
identifying the material disputes of fact that continue to
exist.
As a procedural matter, then, the City’s motion for judg-
ment on the pleadings on parts of the First Amendment claim
may have been improper. The judge’s decision to grant the
motion affected his assessment of BBL’s request for a prelim-
inary injunction, but no one noticed the potential procedural
irregularity until we raised it at oral argument. As we’ll see,
it’s not strictly germane to this interlocutory appeal, so we
don’t need to resolve the question here.
Turning now to the merits, nude dancing “is expressive
conduct within the outer perimeters of the First Amend-
ment.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991)
(plurality opinion); see also City of Erie v. Pap’s A.M., 529 U.S.
277, 289 (2000) (plurality opinion). The basic framework for
analyzing this claim derives from the Supreme Court’s
decisions in Renton and Alameda Books, which involved
challenges to ordinances limiting where a sexually oriented

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14 No. 14-1199
business could operate. Renton involved a traditional zoning
ordinance; Alameda Books involved an ordinance prohibiting
multiple adult-oriented businesses in the same building.
Alameda Books was decided by a plurality plus Justice Ken-
nedy; we’ve treated Justice Kennedy’s concurrence, the
narrower opinion, as the holding of the case. Annex Books,
Inc. v. City of Indianapolis, 581 F.3d 460, 465 (7th Cir. 2009);
G.M. Enters., Inc. v. Town of St. Joseph, 350 F.3d 631, 637 (7th
Cir. 2003).
Regulations on sexually oriented businesses are nearly
always reviewed under intermediate scrutiny as content-
neutral regulations. See, e.g., Alameda Books, 535 U.S. at 434
(plurality opinion); id. at 447–49 (Kennedy, J., concurring);
Renton, 475 U.S. at 41; Foxxxy Ladyz Adult World, Inc. v. Village
of Dix, 779 F.3d 706, 711–12 (7th Cir. 2015); Ben’s Bar, Inc. v.
Village of Somerset, 316 F.3d 702, 723–24 (7th Cir. 2003). The
“content-neutral” label in this context is a misnomer; regula-
tions aimed at adult businesses apply to certain types of
speech and not others. As such, Justice Kennedy remarked in
his Alameda Books concurrence that “[t]hese ordinances are
content based, and we should call them so.” Alameda Books,
535 U.S. at 448 (Kennedy, J., concurring).
Regardless of the label, the first question in a case like
this is whether the challenged regulations “are justified
without reference to the content of the regulated speech.”
Renton, 475 U.S. at 48 (quotation marks omitted). In the
ordinary case, regulations on sexually oriented business will
meet this standard if they’re aimed at “the harmful second-
ary effects related to that conduct, i.e., the subsidiary effects
or ‘noncommunicative impact’ of the speech.” Schultz v. City
of Cumberland, 228 F.3d 831, 841 (7th Cir. 2000). When the

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No. 14-1199 15
government relies on a secondary-effects justification to
regulate this category of expression, we “presume that the
government did not intend to censor speech” and therefore
apply intermediate scrutiny. Id.; see also Pap’s A.M., 529 U.S.
at 292 (plurality opinion) (“Respondent’s argument that the
ordinance is ‘aimed’ at suppressing expression through a
ban on nude dancing … is really an argument that the city
council also had an illicit motive in enacting the ordinance.
As we have said before, however, this Court will not strike
down an otherwise constitutional statute on the basis of an
alleged illicit motive.”); United States v. O’Brien, 391 U.S. 367,
384 (1968) (“We decline to void [on First Amendment
grounds] … legislation which Congress had the undoubted
power to enact and which could be reenacted in its exact
form if the same or another legislator made a ‘wiser’ speech
about it.”).
Given this doctrine, it’s no surprise that regulations on
businesses offering sexually oriented entertainment are
rarely subject to strict judicial scrutiny. Local governments
are usually smart enough to invoke “secondary effects” in
their regulation of adult businesses. Reciting the magic
words doesn’t end the inquiry, of course; whether the ad-
verse secondary effects invoked by the municipality have a
basis in reality and are likely to be reduced by the chal-
lenged regulation are important inquiries in the intermedi-
ate-scrutiny analysis. But when a challenged regulation has
been justified with some secondary-effects explanation, the
potential or actual invalidity of those explanations doesn’t
trigger strict scrutiny. As long as “one purpose of the ordi-
nance is to combat harmful secondary effects,” the ordinance
is regarded as content neutral (despite the legal fiction) and

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16 No. 14-1199
thus intermediate scrutiny applies.1 Pap’s A.M., 529 U.S. at
292 (plurality opinion).
We’ve previously observed that there is some confusion
in the cases about which intermediate-scrutiny test should
be used when. See Ben’s Bar, 316 F.3d at 724 (describing the
confusion about the tests); G.M. Enters., 350 F.3d at 638
(declining to choose a test). One possibility is the test for
“time, place, and manner” restrictions that was applied in
Renton and Alameda Books. The other is the test for incidental
limitations on expressive conduct announced in United States
v. O’Brien.
The Renton/Alameda Books test requires the government to
show that the challenged ordinance (1) “is designed to serve
a substantial governmental interest” and is narrowly tailored
to serve that interest; and (2) “allows for reasonable alterna-
tive avenues of communication.” Renton, 475 U.S. at 50. In
Ben’s Bar we noted that “the Supreme Court does not always
spell out the ‘narrowly tailored’ step as part of its standard
for evaluating time, place, and manner restrictions” in this
context, but we held that narrow tailoring is a part of the
Renton test, just as it is for time, place, and manner re-
1 In its recent decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the
Supreme Court clarified the concept of “content-based” laws, which are
presumptively unconstitutional and get strict scrutiny. The Court held
that “[g]overnment regulation of speech is content based if a law applies
to particular speech because of the topic discussed or the idea or message
expressed.” Id. at 2227. We don’t think Reed upends established doctrine
for evaluating regulation of businesses that offer sexually explicit
entertainment, a category the Court has said occupies the outer fringes of
First Amendment protection. City of Erie v. Pap’s A.M., 529 U.S. 277, 292
(2000) (plurality opinion).

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No. 14-1199 17
strictions more generally. 316 F.3d at 714 n.16 (quotation
marks omitted).
The O’Brien test is arranged differently:
[A] government regulation is sufficiently justi-
fied [1] if it is within the constitutional power
of the Government; [2] if it furthers an im-
portant or substantial governmental interest;
[3] if the governmental interest is unrelated to
the suppression of free expression; and [4] if
the incidental restriction on alleged First
Amendment freedoms is no greater than is es-
sential to the furtherance of that interest.
391 U.S. at 377.
In Andy’s Restaurant & Lounge, Inc. v. City of Gary,
466 F.3d 550, 552–53 (7th Cir. 2006), we suggested that zon-
ing ordinances are considered time, place, and manner
restrictions—and are evaluated under the Renton/Alameda
Books framework—while public-indecency statutes are
properly regarded as laws incidentally affecting expressive
conduct—to which O’Brien applies. Compare Alameda Books,
535 U.S. at 434 (plurality opinion) (endorsing the Renton
time, place, and manner test for a zoning ordinance), and
Renton, 475 U.S. at 50 (applying the test for time, place, and
manner restrictions for a zoning ordinance), with Pap's A.M.,
529 U.S. at 289 (plurality opinion) (applying O’Brien to a
public-indecency statute); Barnes, 501 U.S. at 566 (plurality
opinion) (applying O’Brien for Indiana’s pasties-and-G-string
nude-dancing statute); and Foxxxy Ladyz, 779 F.3d at 712
(applying O’Brien for another public-nudity ban).

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18 No. 14-1199
In practice, the two tests are very similar, but as we’ve
seen, they’re framed a bit differently. Here, the challenged
regulations are about “place.” BBL contests the City’s re-
quirement that sexually oriented businesses locate at least
750 feet from any residential structure. That the buffer-zone
requirement appears in a traditional zoning ordinance and in
a licensing ordinance makes no difference for purposes of
BBL’s First Amendment claim, though it may be an im-
portant distinction for the state-law claims. Because the
challenged ordinances restrict where sexually oriented busi-
nesses may locate, the Renton/Alameda Books approach
applies.
We explained in Annex Books that the Renton/Alameda
Books framework requires the regulating authority to estab-
lish through evidence that the challenged regulation serves a
substantial governmental interest and is narrowly tailored
toward that end. 581 F.3d at 462–64; see id. at 463 (“[T]he
public benefits of the restrictions must be established by
evidence, and not just asserted.”). This can be accomplished
by evidence tending to show a link between the adverse
secondary effects of adult businesses and the challenged
regulatory response. Id.
Moreover (and this is really a procedural point), once the
government makes this preliminary showing, the challenger
gets to fight back. The Supreme Court explained in Alameda
Books that the plaintiff may cast doubt on a municipality’s
rationale “either by demonstrating that the municipality’s
evidence does not support its rationale or by furnishing
evidence that disputes the municipality’s factual findings.”
535 U.S. at 438–39 (plurality opinion). If the plaintiff is
successful, it’s up to the municipality to “supplement the

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No. 14-1199 19
record with evidence renewing support for a theory that
justifies its ordinance.” Id. at 439.
If the challenged regulation survives this analysis, the fi-
nal step in the Renton/Alameda Books framework asks wheth-
er the ordinance “allows for reasonable alternative avenues
of communication.” Renton, 475 U.S. at 50. This requirement
isn’t terribly onerous. Time, place, and manner restrictions
obviously “limit or foreclose some avenue of communica-
tion; the question is whether there are other adequate means
of dissemination.” Matney v. County of Kenosha, 86 F.3d 692,
698 n.4 (7th Cir. 1996). We’ve held, for example, that a zoning
ordinance limiting adult businesses to 4% of the parcels in a
small town is constitutionally acceptable. See Ill. One News,
Inc. v. City of Marshall, 477 F.3d 461 (7th Cir. 2007). But per-
centages are not dispositive; what’s required is that the
municipality’s zoning scheme leave open “a ‘reasonable
opportunity’ to disseminate the speech at issue.” North Ave.
Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir.
1996) (quoting Renton, 475 U.S. at 52)).
More could be said about the nuances in Justice Kenne-
dy’s reading of the Renton/Alameda Books framework, but we
don’t need to take the analysis any further to decide this
case. At the preliminary-injunction hearing, BBL stipulated
to the City’s secondary-effects justification:
We’ll stipulate that in our preliminary injunc-
tion motion we are not challenging here the
factual predicate for the ordinances. We do
want to challenge that. That was part of the
amended complaint that was struck. We’ve
asked for discovery on that. We haven’t been
able to take discovery. So we want to challenge

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20 No. 14-1199
that, at some point, but we will stipulate so
that [Angola’s counsel] is not concerned that
we would go up to the Court of Appeals and
make the argument that they … didn’t have a
requisite basis at least for this point to enact
these ordinances. They’re relying on that.
That’s fine. We’re not challenging that here.
In short, BBL reserved its right to contest the City’s sec-
ondary-effects justification later in the litigation but made a
tactical decision not to do so at the preliminary-injunction
stage. That decision was fatal to its effort to win interim
injunctive relief. The City provided an extensive (if boiler-
plate) catalog of secondary-effects research that it claims
justifies the 2012 amendments to its zoning and licensing
ordinances. By stipulating to the “factual predicate for the
ordinances”—i.e., the secondary-effects justifications—BBL
radically reduced its chances of obtaining a preliminary
injunction.
What remains is the question whether the ordinances
leave open adequate “alternative avenues of communica-
tion.” Renton, 475 U.S. at 47. The judge found a material
factual dispute on this question and on that basis denied the
City’s motion for summary judgment. But the judge also
concluded that BBL hadn’t shown a likelihood of success on
this issue. Each side submitted an expert’s report explaining
how much land in the City remains available for sexually
oriented businesses once the zoning restrictions are applied.
The City’s expert identified 41 parcels containing 110.02
acres and comprising 5.34% of the commercial and industrial
acreage in Angola’s zoning jurisdiction. BBL’s expert, on the
other hand, said there were no parcels available, but the

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No. 14-1199 21
judge noted that it was unclear whether the expert had
included land zoned for commercial use, industrial use, or
both, or whether he applied the 750-foot residence buffer,
the other restrictions in the zoning ordinance, or both. On
this uncertain record, the judge declined to issue a prelimi-
nary injunction.
We see no error in that conclusion. BBL acknowledges on
appeal that the City identified plenty of sites where an adult
business can currently locate. Its only argument on appeal is
that adult businesses couldn’t locate anywhere in the City
for the two-month period between September 17, 2012, when
the licensing ordinance was adopted, and November 19,
2012, when the zoning ordinance was amended. This tempo-
rary state of affairs for two short months in the fall of 2012 is
no basis for a court today to issue an injunction. With the
adoption of the November 2012 zoning amendments, it
became possible to locate adult businesses in Angola, and
that’s enough to defeat BBL’s argument. See Brown v. Barthol-
omew Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir. 2006)
(explaining that a claim for injunctive relief becomes moot
when “the threat of the act sought to be enjoined [has]
dissipate[d]”).
B. State-Law Claims
BBL also based its motion for a preliminary injunction on
its two state-law claims. The judge granted judgment on the
pleadings for the City on these claims and thus did not
consider them in the preliminary-injunction calculus. BBL
reprises its merits arguments on these claims, but our juris-
diction doesn’t include review of the judge’s order granting
judgment on the pleadings. We’ll address these issues only

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22 No. 14-1199
to the extent that they bear on the preliminary-injunction
question.
Indiana law requires municipalities to amend their zon-
ing ordinances through a process involving the city’s plan
commission and board of zoning appeals. See City of Carmel
v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 784–85 (Ind.
2008) (describing the statutory framework for zoning enact-
ments pursuant to the “600 Series Procedures” of Indiana
Code §§ 36-7-4-601 to 616). This procedure “must be fol-
lowed in order for those ordinances to be valid.” Id. at 784.
BBL argues that the licensing ordinance’s 750-foot residential
separation requirement was in reality a zoning provision,
and because the legal process required for amending zoning
ordinances wasn’t followed, the ordinance is invalid.
The City maintains that the licensing ordinance doesn’t
qualify as a zoning ordinance under Indiana law. The judge
agreed. We don’t see how the classification matters for
purposes of BBL’s request for a preliminary injunction. The
same 750-foot buffer zone was included in the November
2012 amendments to the zoning ordinance, and BBL doesn’t
challenge the City’s process for adopting these amendments.
So a preliminary injunction against the same provision in the
licensing ordinance would be pointless.
Finally, BBL argues that it had vested nonconforming use
rights, which arose at the time it submitted its winning bid
on the property on August 9, 2012. Typically, nonconform-
ing-use exceptions to zoning ordinances require actual
nonconforming use of the property before the newly adopted
regulations became effective. Metro. Dev. Comm'n of Marion
Cnty. v. Pinnacle Media, LLC, 836 N.E.2d 422, 425 (Ind. 2005)
(“A nonconforming use is a use of property that lawfully

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No. 14-1199 23
existed prior to the enactment of a zoning ordinance that
continues after the ordinance’s effective date even though it
does not comply with the ordinance’s restrictions.”). Chang-
es in use zoning while a property is in use can raise constitu-
tional concerns, so municipalities usually have a system for
protecting, at least to a limited extent, the property owner’s
continued use of the property under the old zoning rules. See
id. (“[T]he government could not terminate [the use once it’s
established] without implicating the Due Process or Takings
Clauses of the Fifth Amendment of the federal constitu-
tion … .”).
At least two things are different here from the typical
vested-rights scenario. First, there hasn’t been any actual use
of the property as a sexually oriented business. At most, BBL
purchased the property, performed limited construction, and
applied for a few government authorizations. This isn’t
necessarily an insurmountable obstacle, at least in principle:
[W]here a property owner has manifested an
intent to use the property for a certain use and
has made substantial investments and prepara-
tory steps in good faith reliance on then-
existing zoning regulations, the courts may re-
lax the requirement of an actual preexisting use
and find a “vested right to a nonconforming
use.”
2 PATRICIA E. S ALKIN , A MERICAN LAW OF Z ONING § 12:16 (5th
ed. 2015); see also Pinnacle Media, 836 N.E.2d at 428–29 (“[The
operative] question [is] … whether, at the time of the change
in the zoning ordinance, construction had proceeded on the
project to the point that the developer had a vested inter-
est.”); City of New Haven v. Flying J., Inc., 912 N.E.2d 420, 426

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24 No. 14-1199
(Ind. Ct. App. 2009) (calling for “fact-sensitive analysis to
determine whether vested rights have accrued prior to
application for a building permit or construction” but stating
that “construction definitely does establish a vested right”).
The second difference between this case and the usual
vested-rights case is dispositive, however. Here, the judge
held that under Indiana law BBL couldn’t advance a vested-
rights claim based on unlawful construction activity on the
property. Cf. Wesner v. Metro. Dev. Comm’n of Marion Cnty.,
609 N.E.2d 1135, 1138 (Ind. Ct. App. 1993) (describing the
nonconforming use doctrine as requiring “a lawful pre-
existing nonconforming use”). The judge concluded, based
on the evidence presented at the preliminary-injunction
hearing, that BBL’s construction at the site was conducted
unlawfully in violation of the City’s building-permit re-
quirement. That strikes us as a reasonable application of
Indiana law, at least for purposes of denying preliminary
injunctive relief.
BBL makes other arguments on appeal but none are with-
in the scope of our jurisdiction. For the foregoing reasons,
the motion for a preliminary injunction was properly denied.
A FFIRMED.

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