SARAH BARKER, District Judge
In June 2003, Plaintiffs Annex Books, et. al., filed a request for injunctive relief, pursuant to Federal Rule of Civil Procedure 65(b) ( temporary restraining order), seeking to enjoin Defendant, City of Indianapolis ("City"), from enforcing Chapter 807 of the Revised Code of the Consolidated City and County of Indianapolis. This provision pertains to the licensing and premises regulation of adult entertainment businesses within the county.
The proceeding was stayed while the City amended Chapter 807. This amended version of the ordinance went into effect on October 18, 2003. Plaintiffs have renewed their motion for a temporary restraining order on the grounds that the provisions violate their rights under the First, Fourth and Fourteenth amendments of the United States Constitution.
For the reasons set forth below, we GRANT Plaintiffs's Motion for a Temporary Restraining Order.
Legal Analysis
Temporary Restraining Order
The grant of a temporary restraining order is appropriate if the moving party is able to demonstrate: (1) some likelihood of prevailing on the merits and (2) an inadequate remedy at law and irreparable harm if preliminary relief is denied. Abbott Labs v. Mead Johnson Co., 971 F.2d 6, 11 (7th Cir. 1992). If these threshold conditions are met, we proceed to balance the harm to Annex Books if the injunction is not issued against the harm to the City if it is issued and also ask what effect the granting or denying of the injunction will have on nonparties. Id.
Injunctive relief is particularly appropriate to enjoin enforcement of an ordinance that threatens First Amendment rights. American Amusement Machine Assoc. v. Kendrick, 244 F.3d 572 (7th Cir. 2001).
A. Likelihood of prevailing on the merits
For an injunction to issue, Plaintiffs must demonstrate some likelihood of prevailing on their constitutional challenge under the First, Fourth and Fourteenth Amendments. We need not consider all the proposed grounds, so for the sake of expediency as is required by a motion for immediate injunctive relief, we base our decision on the single claim that under the ordinance the plaintiffs's First Amendment rights have been impaired by a denial of Plaintiffs's right to meaningful judicial review of a denial, suspension or revocation of a license to operate an adult entertainment business.
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), the Supreme Court held that a municipal licensing scheme that regulates adult bookstore-type businesses in the nature of the Plaintiffs's business here, where the materials are Constitutionally protected, is permissible as a prior restraint if there are safeguards to minimize the possibility that the licensing procedures will be used to suppress speech. Among the requirements set out by the Supreme Court for licensing ordinances to pass Constitutional muster are that the regulatory scheme cannot place Aunbridled discretion in the hands of a government official or agency. @ Such unbridled discretion when vested in a government official amounts to unconstitutional censorship or prior restraint upon the exercise of free speech. Other requirements for ordinances of this nature include limits on the time for a decision by the decision-maker, and the maintenance of the status quo by the applicant until a final licensing decision issues. Finally, the regulatory scheme must provide for A prompt judicial review(r) in the event that a license is erroneously denied.
We focus for purposes of this ruling on the following sections:
Sec. 807-207. Judicial review of denial, suspension or revocation.
(a) A denial of an application for a license or for renewal of a license under this chapter shall not be subject to administrative review under the procedures provided in Chapter 801, Article IV, Divisions 2 and 3 of this Code, but in the alternative may be appealed to the Marion Superior Court.
(b) A suspension or revocation of a license under this chapter shall not be subject to administrative review under the procedures provided in Chapter 801, Article IV, Division 3 of this Code, but in the alternative may be appealed to the Marion Superior Court.
(c) The appeal of a denial, suspension or revocation under this chapter shall be subject to the same rules and procedures, and shall be conducted in the same manner, as prescribed for judicial review under Indiana code Chapter 4-21.5-5, as the same shall be amended from time to time; provided, however, that notwithstanding the provisions of those statutes, the following requirements apply to a petition for judicial review filed under this chapter:
(1) The petition must be filed within ten (10) days of the issuance of the controller's decision, and
(2) Within fourteen (14) days from the date the city was served the petition, the
controller shall prepare the city's record for the petitioner to transmit to the court.
At oral argument, the City urged us to read Chapter 807 in tandem with Chapter 801. The City argued that we should consider a taxi cab operator who is denied a license to be on the same footing as the adult bookstore when it comes to the general regulatory scheme. All applicants, according to the City, including these plaintiffs, who seek business licenses in Indianapolis and Marion County are subject to clear, neutral licensing requirements and are afforded adequate procedural safeguards should the decisionmaker, that is, the City Controller, deny an application or suspend or revoke an existing license, thus creating a quasi-judicial process which would permit meaningful, substantive judicial review.
Chapter 801, the generic ordinance covering all City-issued licenses, does provide, inter alia, procedures for review in the event a business license is denied. Section 801-210, for example, provides for a written notice of the denial supported by a statement of reasons as well as the right to request a Controller's hearing and the right to appeal the decision to the license review board.
These § 801 safeguards would in all likelihood survive Constitutional scrutiny had they been incorporated into or grafted onto Chapter 807. The language of Section 807-207 of Ordinance 87, 2003, however, expressly excludes many of the critical procedural safeguards in Chapter 801, providing as follows:
(a) A denial of an application for a license or for renewal of a license under this chapter
shall not be subject to administrative review under the procedures provided in Chapter 801, Article IV, Divisions 2 and 3 of this Code, but in the alternative may be appealed to the Marion Superior Court.
(b) A suspension or revocation of a license under this chapter
shall not be subject to administrative review under the procedures provided in Chapter 801, Article IV, Division 3 of this Code, but in the alternative may be appealed to the Marion Superior Court.
Id. (emphasis supplied). (Specifically, Chapter 801, Article IV, Division 2 governs Controller's hearings and Division 3 covers reviews by the three-member License Review Board.)
The City contends that the general right to request a controller's hearing afforded by Chapter 801, Article n, Section 801-210 extends to a Section 807 applicant under the ordinance as written; assuming that is true, the critical matters of "how, where, why and when" of such a hearing are no longer covered as well as the requirements governing the formulation of a decision and when and how to lodge an administrative appeal. Offering the right to request a hearing without including any of the procedural steps for exercising that right, including nothing regarding the creation of a reviewable record by a court, deprives the applicant of meaningful access to judicial review.
Section 801-421 governs the time period within which to request a Controller's hearing, Section 801-422 outlines the elements of the notice requirement, Section 801-423 prescribes the hearing procedures and Section 801-424 requires the Controller to state the factual and legal basis for an adverse decision. Similarly, Section 801-435 outlines the procedures for a hearing before the License Review Board and Section 801-436 directs the License Review Board to make a written determination supported by reasons within thirty days of the hearing.
The requirement for "prompt judicial review" in the context of First Amendment-related licensing schemes has been interpreted in the Seventh Circuit to require "prompt access to judicial review," rather than a "prompt judicial determination." We find the requirement for prompt access to a judicial forum encompasses the opportunity for meaningful review; only if the ordinance permits or facilitates meaningful judicial review, by providing the necessary procedural safeguards leading up to such a review, will it pass Constitutional muster. Without such safeguards, permitting judicial review is a hollow gesture.
A plurality in FW/PBS Inc. v. City of Dallas, 493 U.S. 215, 229 (1990) held that the Dallas zoning and licensing ordinance for the adult entertainment industry failed, inter alia, for want of an avenue for prompt judicial review of an adverse decision.
See Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc). See also TK's Video v. Denton County, 24 F.3d 705, 709 (5th Cir. 1994).
The Fourth, Sixth, Ninth and Tenth circuits hold that a guarantee of a prompt judicial determination is required. See Baby Tarn Co. v. City of Las Vegas, 154 F.3d 1097, 1101-02 (9th Cir. 1998) for a discussion of the difference of interpretation among the circuit courts.
Chapter 807's express exclusions of the procedural safeguards in Chapter 801 calls into question the constitutionality of the Chapter 807 ordinance. Because meaningful administrative and judicial review are central to the constitutionality of the challenged ordinance, these deficiencies cannot be severed from the ordinance so as to allow the remaining provisions of the ordinance to survive. Plaintiffs have thus demonstrated a reasonable likelihood of success on the merits of their constitutional challenge under the First Amendment and the Supreme Court holding in FW/PBS.
B. Irreparable harm
Having determined that the City's licensing restrictions under Chapter 807 suffer from at least one constitutional defect, it is clear that enforcement of the ordinance will operate to Plaintiffs's detriment and harm. In Elrod v. Bums, 427 U.S. 347 (1976), the Supreme Court acknowledged that while the loss of a tangible right such as employment (or in the case at hand, a business license) may not constitute irreparable harm sufficient to justify the granting of injunctive relief, when a Constitutional loss is involved then irreparable injury is more likely to occur. In Elrod. the Constitutional right at issue was the right of free association. In the case before us, it is the right of freedom of speech and the related loss of meaningful judicial review. We conclude that by subjecting licensees to restrictions without allowing meaningful recourse to judicial review, enforcement of the ordinance threatens irreparable injury. Plaintiffs thus have met the second requirement entitling them to immediate injunctive relief.
C. Balancing of the harms
The City's amended ordinance provides for the issuance of conditional permits to applicants whose licenses have been denied or suspended, thus preserving the status quo while the applicant seeks judicial review. Section 807-204(c). We concede that allowing applicants to maintain their operations after a license is denied, pending completion of judicial review, substantially ameliorates the harms the plaintiffs might otherwise face. Nonetheless, because prior to obtaining judicial review license applicants have been deprived of the means of creating an administrative record which permits effective judicial review, the balance of harms falls more heavily on Plaintiffs. Accordingly, we hold that the harm to the plaintiffs if injunctive relief is denied substantially outweighs the harm to the City if it is granted.
D. Public interest
There is an incontrovertible, compelling public interest in promoting the health, safety, morals and general welfare of the citizens of Marion County. Similarly, there is an unquestioned public interest in regulating health interests in a manner that conforms to Constitutional standards. The City must achieve its goal of advancing the welfare of its citizens within Constitutional limits. About the Constitutionality of this ordinance, as discussed above, we have serious reservations.
Conclusion
In determining whether the plaintiffs are entitled to injunctive relief, the above factors do not assume absolute weights. Instead, we have applied a sliding scale approach, under which, "the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh toward its side; the less likely it is the plaintiff will succeed, the more the balance need weigh toward its side." Abbott Laboratories, 971 F.2d at 12 (7th Cir. 1992).
We conclude that Plaintiffs have demonstrated a likelihood of success on the merits as well as the risk of irreparable harm if a temporary restraining order is denied. Further, we hold that an injunction against enforcement of this ordinance does not violate the public interest. Accordingly, Plaintiffs's motion for a temporary restraining order isGRANTED. Until further order of the Court or pending a final resolution of the merits of this case, we hereby ENJOIN the enforcement of Chapter 807 of the Revised Code of the Consolidated City and County of Indianapolis, Marion County. A schedule for the hearing on a preliminary injunction shall be set by separate order of the Court.