FILED Apr 24 2025, 9:25 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana MIB, LLC, Ryan Polokoff, and Sabine Kissee, Appellants-Respondents
v.
City of Noblesville and The Planning and Development Director for the City of Noblesville, Indiana, Appellees-Petitioners
April 24, 2025 Court of Appeals Case No. 24A-PL-1893 Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge Trial Court Cause No. 29D01-2406-PL-6479
Opinion by Judge Brown Chief Judge Altice and Judge Tavitas concur.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 1 of 23 Brown, Judge.
[1] MIB, LLC, doing business as My Inner Baby (“MIB”), Ryan Polokoff, and
Sabine Kissee 1 (collectively, “Respondents”) appeal the trial court’s entry of a
preliminary injunction ordering that MIB cease its operations at a certain
location in Noblesville and enjoining Respondents from reopening the business
in any zoning district in Noblesville where Sex Shops are prohibited unless
approved through a use variance or rezoning petition. We affirm.
Facts and Procedural History
A. The Director of the Department of Planning and Development
[2] On April 26, 2022, the Director of the Department of Planning and
Development (the “Director”) for the City of Noblesville (the “City”) issued a
“Formal Determination of Impermissible Use” with respect to the use of certain
property with an address on Herriman Boulevard (“Store One”). Appellants’
Appendix Volume II at 139. The determination found the property is “within
Noblesville City Limits” and “zoned I-1 (Light Industrial).” Id. The
determination stated that “[t]he following definitions found in Article 2” of the
United Development Ordinance (“UDO”) were relevant:
Sex Shop - An establishment offering goods for sale or rent and that meets any of the following tests.
1 Polokoff and Kissee are members of MIB, LLC, and Polokoff is the managing member.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 2 of 23 1. The establishment offers for sale items from any two of the following categories: (a) adult media, (b) lingerie, or (c) leather goods marketed or presented in context to suggest their use for sadomasochistic practices; and the combination of such items constitutes more than 10 percent of its stock in trade or occupies more than 10 percent of its floor area.
2. More than 5 percent of its stock in trade consists of sexually oriented toys or novelties.
3. More than 5 percent of its gross public floor area is devoted to the display of sexually oriented toys or novelties.
Sexually-Oriented Toys or Novelties – Instruments, devices, or paraphernalia designed as representations of human genital organs or female breasts, or designed or marketed primarily for use to stimulate human genital organs. ORD. #57-9-04
Id. The Director’s determination found: “Per the definition stated above and
information the City has obtained regarding the business, I have determined
that [MIB] would fall under the definition of a Sex Shop, which is not a
permitted use within the I-1 zoning district.” Id. at 140. It stated: “Therefore,
this business should cease and desist its unpermitted operations until such time
as all necessary filings or approvals are obtained.” Id. MIB appealed to the
City’s Board of Zoning Appeals (the “BZA”).
B. BZA Proceedings
[3] On August 1, 2022, the BZA held a meeting. Counsel for MIB argued “[t]he
issue here is the attempt to regulate how people use the products that are for
sale, not the products themselves.” Id. at 176. She argued “[j]ust because
people like to dress up like babies, it doesn’t mean that they use it for sexual Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 3 of 23 purposes,” “[t]he bottles that they have available are used in baby showers,”
“[t]he same for the pacifiers as gifts to people,” and “[t]his is not a sex shop.”
Id. at 177.
[4] Counsel for the City argued that MIB met the definition of a Sex Shop under
paragraphs 2 and 3 of the UDO’s definition. She argued:
[T]he inventory that they have does meet this requirement, that it is, in fact, a sex shop by definition. . . . [Y]ou have photographs of it. . . . [T]he overwhelming majority of the stuff in that store is a sex novelty. . . . After receiving complaints and conducting research, the City determined that My Inner Baby is a sex shop for the following four reasons. MIB self-markets what is called an ABDL store. It utilizes several hashtags in its social media marketing that targets individuals who knowingly look for adult baby products to use for sexual gratification. It has proudly been referenced in Hustler magazine, which is a monthly pornographic publication, and its claim that it’s a medical supply company is bogus. First, ABDL stands for adult baby diaper lovers. ABDLs are a group of persons who involve themselves in childlike role playing for sexual stimulation. According to online resources, both men and women can be a DL or a diaper lover. Those persons seek pleasure by urinating and/or defecating on themselves for pleasure. The AB is an adult baby and tends to be female to provide care and nurturing to their diaper lover counterpart. Think of it very much like a mother/child relationship, but with two consenting adults. ABDL or adult baby diaper lover is openly identified as a sexual fetish on the internet. For example, Urban Dictionary defines adult baby diaper lover as a sexual fetish involving adults acting like babies and/or wearing diapers. ABDL is also known as age play and was listed in a March 21, 2018, article titled Six Unusual Fetishes and Other Surprising Trends.
*****
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 4 of 23 [T]hey use hashtags such as CG, LF, L-lifestyle, which stands for caregiver/little lifestyle. It’s a relationship where one person is the caregiver, and the other is a child. It is known as a BDSM relationship. BDSM stands for bondage discipline dominance and submission that may or may not involved [sic] sexual intercourse but often involves playing with childlike toys together for sexual pleasure. Another hashtag that is used in their own marketing when they are posting their photographs is hashtag DDLG. Again, this a BDSM or a bondage discipline dominance submission group that they are targeting this product for them to look at. Other hashtags that they have include DDLG baby girl, legal little, and NDLB. Each of these hashtags are included on social media accounts like Instagram and Twitter where they post pictures of their products they sell. They include these hashtags intentionally so person[s] who follow these accounts will see and, hopefully, purchase their products. . . . My Inner Baby along with other ABDL stores was recently mentioned in Hustler magazine . . . .
[M]y Inner Baby is not a medical supply shop as it claims. There are no medical conditions that require an adult to wear a onesie or suck on a bottle or pacifier to alleviate or recover from a condition or ailment. . . . For example, . . . a medical supplier here in Noblesville, supplies products such as pressure gauges, resuscitators, facemasks, intubation aids, suction pumps, arm sleeves, and catheters[,] [w]hile My Inner Baby, on the other hand, sells onesies, changing mats, pacifiers, baby bottles, bibs, and adult sized baby clothing. . . . There is no doubt that My Inner Baby is a sex shop. Is it exclusively a sex shop? Maybe not. There very well may be adults in the world who just enjoy wearing onesies, drinking from baby bottles, and walking around in diapers, but My Inner Baby is a self-marketed ABDL store. Nearly all the research online concerning the ABDL lifestyle is that it is a sexual fetish, that it[s] products are designed to stimulate sexual gratification.
Id. at 181-187.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 5 of 23 [5] Counsel for MIB argued:
I walked every square inch of that store and its warehouse. I promise you there are . . . no female breasts, even on the dummies, and there are no paraphernalia that’s designed as a representation of human genital organs or female breasts. . . . Who they choose to advertise to is protected by the United States Constitution. They have freedom of speech. They can advertise wherever they want. They do not advertise in Hustler. If Hustler chooses to include them on their publication, that’s their issue, not my client’s. . . .
As far as medical doctors go, there’s a psychiatric community that uses the term, regression, and a lot of patients who do participate in regression therapy do get prescriptions to purchase onesies and diaper covers and other implements to aid in their psychiatric treatment.
Id. at 189-190.
[6] The BZA opened the floor to the public. A supplier of MIB stated “[t]hose who
are sexually aroused by wearing diapers can testify as having a sexual fetish,
however, that does not necessarily mean they meet the criteria for fetishistic
disorder,” “[d]eeming MIB as a sex shop shocks my conscious that you are
trying to kill capitalism here this way,” and “[i]t is a direct attack on our
freedom as Americans[.]” Id. at 192-193. A licensed marriage and family
therapist stated that her office was located across the street from MIB and “I
have my own business as well and, quite frankly, with having a daycare center,
a swim club, a gym, and a CAC right across the street is appalling to me.” Id.
at 193. She stated “it’s a dark world and I really don’t like it being right across
[from] my office where I work with people who have been traumatized by
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 6 of 23 sexual abuse and this is also pedophilia, and it’s part of the fetish[.]” Id. at 194.
The executive director of a child advocacy center located across the street from
the MIB location stated “the packet of information that we gave you gave you
multiple definitions including from the DSM3, whether it is actually a
psychological issue or not a psychological issue, we have the issue or definition
that is actually listed internationally by the ABDL community itself, which does
express that it is for sexual eroticism.” Id. at 195. She also stated “I just
implore you that we keep our zoning as we specifically chose this center in this
location because it is near a daycare, because it is near a family friendly area in
the neighborhood, and it is near an area that we don’t have concerns about it
being okay for kiddos to be there.” Id.
[7] The BZA denied MIB’s appeal, affirming the determination of the Director.
On September 6, 2022, the BZA adopted written “Facts and Conclusions”
stating that its “denial of the appeal is due to the Director’s determination that
My Inner Baby’s use of the premises falls under the Sex Shop land use
classification” and “[t]hat determination was made based upon the definition of
‘Sex Shop’ included in Article 2 of the [UDO].” Id. at 221. It further stated
that it “considered the following when it denied the appeal”: MIB “self-markets
as an ABDL store”; MIB “uses a number of hashtags on social media and
marketing posts that target individuals who knowingly look for adult baby
products to use for sexual gratification”; MIB “is identified as an ABDL store
including by the_abd1_map which notes that it is proud of its recognition in
Hustler Magazine, a monthly pornographic magazine”; and MIB “is listed on
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 7 of 23 the web as part of other websites noting their merchandise for the ABDL
lifestyle.” Id. at 221-222.
C. Petition for Judicial Review
[8] On August 9, 2022, MIB filed a Verified Petition for Judicial Review in the
Hamilton Circuit Court. On September 20, 2022, the BZA filed a motion to
dismiss arguing that MIB had “not filed the agency record or sought an
extension of time to file the agency record.” Id. at 224. On October 10, 2022,
the Hamilton Circuit Court granted the BZA’s motion to dismiss and dismissed
the case.
D. Federal Action
[9] On January 1, 2023, Respondents filed a “Complaint for Temporary Retraining
[sic] Order, Injunction and Damages, and Demand for Jury Trial” in the
United States District Court for the Southern District of Indiana, against the
Director and members of the BZA raising counts of violations of the First
Amendment, Equal Protection, Due Process, and the Commerce Clause. On
August 24, 2023, the District Court found the claims were barred by the
doctrine of claim preclusion and dismissed the complaint. Respondents
appealed to the United States Court of Appeals for the Seventh Circuit. “Upon
consideration of the Stipulation of Dismissal of Appeal, filed on January 25,
2024, by counsel for the parties,” the appeal was dismissed pursuant to Federal
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 8 of 23 Rule of Appellate Procedure 42(b). 2 Appellants’ Appendix Volume III at 20
(capitalization omitted).
E. Complaint and Request for Preliminary Injunction
[10] On June 13, 2024, the City and Director (“Petitioners”) filed a “Complaint for
Declaratory Judgment and Request for Injunction” against Respondents in the
Hamilton Superior Court. Appellants’ Appendix Volume II at 20. The
complaint alleged that MIB “reopened its Sex Shop in the exact same I-1
Zoning District in the City” and “[t]his sex shop is in direct violation of the
Director’s April 2022 determination.” Id. at 21. It stated: “This is a
Declaratory Judgment action to obtain declaration from this Court that MIB
and its owners, Ryan Polokoff and Sabine Kissee, are prohibited from operating
this, or any similar, business in any Noblesville zoning district where sex shops
are prohibited (including, but not limited to, the I-1 Zoning District).” Id. The
complaint alleged, “[o]n June 3, 2024, MIB announced it reopened its Sex Shop
in Noblesville at a new location . . . Stony Creek Way, Suite 101 . . . (‘Store
Two’).” Id. at 25. It alleged that “MIB’s Store Two is around the corner from
2 At the August 2, 2024 hearing, Petitioners’ counsel stated:
[T]he parties entered into a settlement agreement in lieu of continuing to negotiate and continuing to litigate this in front of the Sevent[h] Circuit Court of Appeals last December. Opposing counsel signed this document. It states, “Plaintiff is permitted to operate its warehouse/e-commerce facility at the RISE Commercial District located at . . . Sheridan Road Noblesville . . . .” So, in an effort to settle this case and bring finality to it, [the City] agreed to let them operate from a warehouse their e-commerce building in an effort to hopefully never be exactly where we are right now. Transcript Volume II at 25.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 9 of 23 the location of Store One,” “Store Two is in the same industrial center where
Store One was located,” “Store Two is also located in an I-1 zoning district,”
and “MIB did not contact the City to seek a variance of use or to file a petition
to rezone the property.” Id.
[11] On June 14, 2024, Petitioners filed a motion for a preliminary injunction
requesting a hearing and an order enjoining Polokoff and Kissee “from
continuing to operate MIB, LLC at . . . Stony Creek Way, Suite 101 . . . and []
order all other just and proper relief.” Id. at 88. On August 2, 2024, the court
held a hearing. Respondents’ counsel moved to admit the affidavit of Polokoff
as a summary of his testimony, and the court admitted the affidavit. Polokoff’s
affidavit stated that MIB operates a retail and e-commerce business that
primarily sells adult diapers, related incontinence supplies, and adult sized
clothing; “MIB’s e-commerce accounts for over 80% of its gross receipts”;
“[s]ince the BZA issued its Facts and Conclusions in September 2022, MIB has
made several significant changes to business operations, social media activity,
and its marketing”; and MIB “no longer self-markets as an ABDL store,” “no
longer hashtags on social media and marketing posts,” and “does not note or
promote its merchandise for the ABDL lifestyle.” Exhibits Volume III at 125-
127 (capitalization omitted). He stated that “MIB continues to meticulously
review, edit and remove any self-reference, marketing references to ABDL or
any other hashtags found to be offensive by the City, from its social media posts
across multiple platforms, to ensure compliance with the issues raised by the
BZA.” Id. at 127. He also stated: “Store Two is which is conspicuous [sic],
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 10 of 23 uses minimal signage, exists inside a non-descript commercial space, and is not
located on a main roadway.” Id. at 128.
[12] On cross-examination of Polokoff, Petitioners’ counsel asked if MIB’s website
“markets products designed, either designed or marketed for ABDL or DDLG
lifestyle,” and he answered: “No, I believe we have gone through and purged
all those notes. The only exception would be the ABDL shop.” Transcript
Volume II at 8. When asked, “[i]f I represented to you that I printed these off
on Tuesday, would you have reason to disagree with me,” Polokoff testified:
“Then I would tell you that we missed these keywords by way of search. But
we’ve tasked our staff extensively with going through the entire website to make
sure the keywords were removed, and we’ve also removed all the keywords
from Google Maps. We’ve removed it from our social media, from Twitter,
from Instagram, from Facebook. We’ve removed them from Tumblr.” Id. at 9.
Petitioners’ counsel stated that Plaintiffs’ Exhibit 1 contained “sixty different
examples of how they’re continuing to still market,” and the court admitted the
exhibit. Id. On redirect examination, when asked, “[t]o the best of your
knowledge, do the major [sic] of these products reference ABDL . . . [o]r the
ABDL hashtag in any of their marketing,” Polokoff testified “[t]hey may, only
by way of things that we’ve missed.” Id. at 11. He testified that Respondents
did not have control over any third-party websites. On re-cross examination,
Petitioners’ counsel asked, “This is not just about hashtags, correct? This
actually says designed with ABDL and Age Players in mind. So, the product is
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 11 of 23 actually designed for that group of persons, correct?” Id. at 13. Polokoff
answered: “That’s the marketing that’s on the product.” Id.
[13] Petitioners’ counsel argued “[a]t no point has the BZA’s decision been
overturned” and therefore “MIB is a sex shop as defined by Noblesville’s
UDO[.]” Id. at 15. She argued “[t]he only fact that has changed is MIB’s
address” and its “new store is minutes away and in the same zoning district.”
Id. She stated “[t]he City is asking the Court to grant it a Preliminary
Injunction and if so inclined convert this to a trial on the merits[.]” Id. She
argued “[t]he City should not . . . be forced to start over or redo any part of this
case with MIB because the facts and the law have conclusively been
established,” “[t]he City has a strong likelihood of success on the merits of this
case,” and “MIB cannot operate this business in any zoning district in
Noblesville where sex shops are prohibited.” Id. She further argued:
With respect to the testimony that we just heard it is likely to be stated in closing that they’re a different business now. Cross examination just proved otherwise. They’re still, these items are not just marketed. This is not just about hashtags that they were putting up on social media. These products are designed for and marketed for sexual gratification. . . .
MIB’s store #2 is three lots away from Cherish Center, which is a nationally accredited child advocacy group that remonstrated against MIB and provided credible testimony at the BZA hearing on this matter on August 1, 2022. MIB store #2 is also located near a youth swim center and two ballet studios. . . . MIB is a sex shop as defined by Noblesville’s UDO . . . . It cannot operate this business in any zoning district in Noblesville where sex shops are not permitted. The City requests that the Court issue an injunction
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 12 of 23 ordering MIB to immediately cease all operations at the Stony Creek Way location, and also ordering MIB, Polokoff, and Kissee to not open this business in any other zoning district in Noblesville where sex shops are prohibited.
Id. at 16-17.
[14] Respondents’ counsel argued “the City believes once we deem you a sex shop,
you are always a sex shop.” Id. at 18. He argued the BZA’s decision only
referenced operations at the address for Store One. He argued:
You’ve heard the testimony today that we no longer use any outward marketing for ABDL or are utilizing any hashtags, the City has produced no evidence of an Instagram post or Facebook post or any other kind of outward marketing that MIB is in anyway responsible for that suggests that it is still an ABDL affiliated store. MIB no longer identifies with ABDL in any of its materials or its online advertising. It no longer references ad placements in any adult magazines, and it has moved. It’s changed signage. It’s . . . in a different location with different frontage, a smaller sign, and has modified its business such that there are no ABDL products that are in the store. It sells FDA regulated diapers, incontinent supplies, and clothing, that’s it. It does not, in none of the City’s prior decisions found that it markets any materials or any items that are actually intended for sexual gratification. This was a marketing case; this was a marketing case about one location. The location changed, the signage changed, the marketing changed, and yet we are still back here with the City trying to stop MIB from doing business. But this has nothing to do at all with the prior decision, this has everything to do with the City attempting to shut MIB down for reasons that it’s never actually, for the reasons that are not actually present in the UDO.
Id.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 13 of 23 [15] In response, Petitioners’ counsel argued:
[T]he parties entered into a settlement agreement in lieu of continuing to negotiate and continuing to litigate this in front of the Sevent[h] Circuit Court of Appeals last December. Opposing counsel signed this document. It states, “Plaintiff is permitted to operate its warehouse/e-commerce facility at the RISE Commercial District located at . . . Sheridan Road Noblesville . . . .” So, in an effort to settle this case and bring finality to it, [the City] agreed to let them operate from a warehouse their e-commerce building in an effort to hopefully never be exactly where we are right now. And here we are, I don’t know why they’re not operating it, but they have permission to operate from that warehouse and that’s what they negotiated and agreed to.
Id. at 25. She argued “this is a lot like Whack-A-Mole,” “[w]e litigated this; we
had this problem resolved,” “[w]e gave you a place to operate your e-commerce
building,” “[t]here are zoning districts in Noblesville that you’re allowed to
operate,” and “[y]et, you’re insistent on continuing to operate in zoning
districts you are not supposed to[.]” Id. at 26.
F. Order of Preliminary Injunction
[16] On August 8, 2024, the trial court entered an “Order of Preliminary
Injunction.” Appellants’ Appendix Volume II at 11. The court found that the
Hamilton Circuit Court dismissed MIB’s petition for judicial review in October
2022 and that, “[a]ccordingly, the BZA’s decision to affirm the Director’s
determination that MIB is Sex Shop is final and conclusive.” Id. at 13. It found
“[t]he parties negotiated and agreed that MIB would be permitted to operate a
warehouse/e-commerce facility at a specific location in Noblesville, IN, so long
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 14 of 23 as MIB, Polokoff, and Kissee complied with specific conditions” and “[t]he
Southern District of Indiana’s decision was not vacated.” Id. at 14. It found
that “MIB’s Store Two is around the corner from the location of Store One,”
“is in the same industrial center where Store One was located,” and “is also
located in an I-1 zoning district.” Id. at 15. It found that “MIB co-owner Ryan
Polokoff stated all MIB business operations are currently conducted from the
Store Two location.” Id. The court found, “[b]ased on the evidence presented
at the hearing, the City is likely to prevail on the merits of this action.” Id. at
16. It found the City “established that MIB’s actions are unlawful” and that
“MIB has – and continues to – violate [the City’s] UDO by operating a Sex
Shop in an I-l zoning district.” Id. at 17. The court granted the City’s request
for a preliminary injunction, ordered that MIB immediately cease all operations
at Store Two at the address on Stony Creek Way, and ordered that
Respondents were “enjoined from reopening this business in any zoning district
in Noblesville where Sex Shops are prohibited, unless approved through a
variance of use or rezoning petition by the City.” Id. at 18-19.
Discussion
[17] Respondents argue the trial court abused its discretion in issuing the
preliminary injunction. They assert “MIB made significant changes to its
business, and ceased advertising to the ABDL community, self-marketing as an
ABDL store, use of the aforementioned hashtags, and provision of its
information to and association with third-party vendors who identified MIB as
an ABDL store (the ‘Changes’).” Appellants’ Brief at 12-13. They argue
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 15 of 23 “MIB’s marketing was the pivotal factor supporting the BZA’s denial of MIB’s
appeal” and, “[c]ognizant of this, when the 2022 Case was dismissed and the
Determination became final, MIB ceased its objectionable marketing by
implementing the Changes.” Id. at 23. They assert: “In essence, the City’s
argument is that MIB’s prior use of Store One is conclusive of MIB’s use of
Store Two. Yet the Changes show clearly that MIB’s prior use of Store One
and its current use of Store Two materially differ.” Id. at 24. They contend
“[t]he trial court erroneously failed to consider MIB’s evidence of the
Changes.” Id. at 26. They state “the trial court seemingly concluded, once a
‘Sex Shop’ always a ‘Sex Shop.’” Id. at 31. Respondents also assert that “the
City’s institution of an original action in the trial court in this case improperly
circumvents the safeguards set up by the UDO.” Id. at 35.
[18] Petitioners argue the trial court did not abuse its discretion in finding “that
MIB’s Store Two—with the same owners, same name, and same products as
Store One—was a ‘Sex Shop.’” Appellees’ Brief at 26. They argue that
Polokoff “never tried to claim that MIB is selling any different products from
Store Two as it did from Store One” and “the trial court saw evidence from
MIB itself that Store Two consists of exactly the same business, using the same
trade name, selling the same products, and doing so in the same business park
with the same zoning classification.” Id. at 27. Petitioners maintain that
“MIB’s entire case—below and on appeal—hinges on a single claimed
difference between the storefronts: that MIB no longer openly concedes that it
caters to the ABDL community” and argue “[t]hat single claimed difference
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 16 of 23 provides no basis to reverse for two reasons”: “First, the trial court could
properly weigh the evidence to reject MIB’s claimed difference,” and “Second,
MIB’s marketing is not dispositive[.]” Id. at 28-29. In support of its first
reason, Petitioners argue that MIB “marketed and sold diapers ‘designed with
ABDLs and Ageplayers in Mind,’” and “sold adult pacifiers ‘perfect for the
Adult Baby AB/DL or DD/LG!’, a phrase that appears at least 44 times in the
exhibit [the City] introduced.” Id. at 28. In support of its second reason,
Petitioners argue “[t]he focus of the zoning ordinance is on the products being
retailed” and “the evidence establishing that MIB sells the same products
showed that MIB has not changed.” Id. at 29. They argue “[t]he nature of these
products was established by the BZA in 2022[.]” Id. at 30.
[19] The grant or denial of a request for a preliminary injunction rests within the
sound discretion of the trial court, and our review is limited to whether there
was a clear abuse of that discretion. Gleeson v. Preferred Sourcing, LLC, 883
N.E.2d 164, 171-172 (Ind. Ct. App. 2008) (citing Ind. Family & Soc. Servs.
Admin. v. Walgreen Co., 769 N.E.2d 158, 161 (Ind. 2002)). We will reverse the
trial court’s judgment only when it is clearly erroneous. Id. at 172. Findings of
fact are clearly erroneous when the record lacks evidence or reasonable
inferences from the evidence to support them. Id. A judgment is clearly
erroneous when a review of the record leaves us with a firm conviction that a
mistake has been made. Id. We consider the evidence only in the light most
favorable to the judgment and construe findings together liberally in favor of the
judgment. Id. Further, Respondents are appealing from a negative judgment
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 17 of 23 and must therefore establish that the trial court’s judgment is contrary to law.
See B&S of Fort Wayne, Inc. v. City of Fort Wayne, 159 N.E.3d 67, 76 (Ind. Ct.
App. 2020) (citations omitted), reh’g denied, trans. denied. A judgment is
contrary to law only if the evidence in the record, along with all reasonable
inferences, is without conflict and leads unerringly to a conclusion opposite that
reached by the trial court. Id.
[20] To obtain a preliminary injunction, the moving party has the burden of showing
by a preponderance of the evidence that: (1) the movant’s remedies at law are
inadequate, thus causing irreparable harm pending resolution of the substantive
action; (2) the movant has at least a reasonable likelihood of success at trial by
establishing a prima facie case; (3) the threatened injury to the movant
outweighs the potential harm to the nonmoving party resulting from the
granting of an injunction; and (4) the public interest would not be disserved.
Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d 484, 487 (Ind.
2003). The difference between a preliminary and a permanent injunction is
procedural. Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751
N.E.2d 702, 712-713 (Ind. Ct. App. 2001). A preliminary injunction is issued
while an action is pending, while a permanent injunction is issued upon a final
determination. Id. at 713. Pursuant to the “per se” injunctive standard, “when
the acts sought to be enjoined are unlawful, the plaintiff need not make a
showing of irreparable harm or a balance of the hardship in his favor.’” Combs
v. Daniels, 853 N.E.2d 156, 160 (Ind. Ct. App. 2006) (quoting L.E. Servs., Inc. v.
State Lottery Comm’n, 646 N.E.2d 334, 349 (Ind. Ct. App. 1995), trans. denied);
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 18 of 23 see B&S of Fort Wayne, 159 N.E.3d at 70-77 (trial court applied “per se” standard
to City of Fort Wayne’s motion for preliminary injunction based on ordinance).
[21] The record reveals that the Director issued a formal determination on April 26,
2022, finding that MIB “would fall under the definition of a Sex Shop.”
Appellants’ Appendix Volume II at 140. The parties do not dispute that the
operation of a “Sex Shop” as defined in the UDO is not a permitted use in “the
I-1 zoning district.” Id. The record further reveals that, upon MIB’s appeal, the
issue of whether MIB constituted a Sex Shop as defined in the UDO was
presented to the BZA on August 1, 2022. As set forth above and in the record,
Counsel for MIB and the City presented extensive and detailed arguments to
the BZA addressing whether the products sold by MIB—including adult-sized
baby clothing, pacifiers, diapers, changing mats, bibs, onesies, and bottles—
constituted sexually oriented novelties. The BZA affirmed the determination of
the Director that MIB constituted a Sex Shop. MIB filed a petition for judicial
review, but after it did not file the agency record, the court dismissed the
petition, leaving the Director and the BZA’s decision undisturbed. 3
[22] Despite the decision of the Director and the BZA, MIB began selling its
products at Store Two. Store Two was “around the corner from the location of
Store One,” “is in the same industrial center where Store One was located,”
3 As noted, Respondents thereafter filed an action in federal court and a subsequent appeal which was dismissed as the parties agreed that MIB was “permitted to operate its warehouse/e-commerce facility at the RISE Commercial District located at . . . Sheridan Road Noblesville . . . .” Transcript Volume II at 25.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 19 of 23 and “is also located in an I-1 zoning district.” Id. at 15. Petitioners filed the
action from which this appeal arises alleging that MIB is a Sex Shop and thus
its use of Store Two is not a permissive use. In granting Petitioners’ motion for
a preliminary injunction, the trial court found that the City is likely to prevail
on the merits of its action. We agree. The court found that, as MIB’s petition
for judicial review was dismissed, “the BZA’s decision to affirm the Director’s
determination that MIB is Sex Shop is final and conclusive.” Id. at 13. Indeed,
there is no dispute that MIB was a party to the proceedings before the BZA,
that the fact or issue of whether MIB’s use of its store space rendered it a Sex
Shop as defined in the UDO was litigated before the BZA, and that the BZA’s
ruling was final. See generally Miller v. Patel, 212 N.E.3d 639, 646-647 (Ind.
2023) (a party is collaterally estopped from relitigating a claim where the same
fact or issue was necessarily adjudicated in a former proceeding, there was a
final judgment in the former proceeding, and the party to be estopped was a
party to the former proceeding).
[23] To the extent Respondents point to Polokoff’s testimony that MIB had changed
its marketing practices and that these constitute new facts, we note the City
presented a lengthy exhibit consisting of product descriptions from MIB’s
website. See Exhibits Volume III at 7 (“The Carousel V2 diaper was designed
with ABDLs and Ageplayers in mind . . . A simple but cute design that is
babyish without taking away from the simple white diaper look”)
(capitalization omitted); id. at 11-45 (appearing numerous times “These
pacifiers have an oversized / adult size guard with a size 6 silicone nipple.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 20 of 23 Perfect for the Adult Baby AB/DL or DD/LG!”). The trial court was able to
weigh the evidence and determine that MIB’s marketing practices had not
substantially changed.
[24] Moreover, while the BZA’s facts and conclusions highlighted some of MIB’s
marketing practices (such as its use of hashtags), it is clear that the Director and
the BZA’s determination that MIB constituted a Sex Shop was based on the
products it sold and the conclusion that those products constituted sexually
oriented novelties. Indeed, the definition of Sex Shop in the UDO refers to
“sexually oriented toys or novelties,” not a company’s marketing practices.
Appellants’ Appendix Volume II at 139. MIB’s products include adult-sized
baby clothing, pacifiers, diapers, changing mats, bibs, onesies, and bottles. The
references by Petitioners’ counsel to MIB’s online and social media presence
were made to show that MIB’s products constituted sexually oriented novelties.
The court found that, without a variance of use or rezoning, MIB is prohibited
from operating in an I-1 zoning district or any other zoning district where Sex
Shops are prohibited, but that, pursuant to the settlement agreement in the
Federal case, MIB is still permitted to operate an e-commerce facility at the
specific location in Noblesville where the parties agreed so long as Respondents
comply with certain conditions.
[25] We conclude, as did the trial court, that Petitioners have shown they have at
least a reasonable likelihood of success at trial by establishing a prima facie
case. As Petitioners have shown a reasonable likelihood that MIB is in
violation of the City’s ordinance, pursuant to the “per se” injunctive standard
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 21 of 23 they “need not make a showing of irreparable harm or a balance of the
hardship” in their favor. See Combs, 853 N.E.2d at 160. The trial court found
that, even without the “per se” standard, the City lacks an adequate remedy at
law, monetary damages cannot compensate the harm caused to the City and its
constituents who rely on fair and consistent enforcement of zoning regulations,
and months after settling the case, MIB reopened its business in the same
zoning district where Store One was located. The court found the balance of
harms also favors the issuance of injunctive relief. MIB, in opening Store Two,
disregarded the ordinance prohibiting the operation of a Sex Shop in an I-1
zoning district. MIB is permitted to operate an e-commerce facility at the
location to which the parties agreed where it can continue its online business.
Petitioners also demonstrated that the public interest would not be disserved by
the injunction. Store Two is around the corner from Store One and in the same
industrial center near a marriage and family therapist’s office, a daycare center,
a swim club, a gym, and a child advocacy center. Our review of the record
does not leave us with a firm conviction that a mistake has been made, and we
cannot conclude that the evidence in the record leads unerringly to a conclusion
opposite that reached by the trial court.
[26] For the foregoing reasons, we affirm the trial court’s Order of Preliminary
Injunction.
[27] Affirmed.
Altice, C.J., and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 22 of 23 ATTORNEYS FOR APPELLANTS Lonnie D. Johnson Justin K. Schwemmer Robert D. Esrock Clendening Johnson & Bohrer, P.C. Bloomington, Indiana
ATTORNEYS FOR APPELLEES Vivek R. Hadley Donald E. Morgan Beth Copeland Taft Stettinius & Hollister LLP Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-PL-1893 | April 24, 2025 Page 23 of 23