concurring in part and dissenting in part.
I agree with the majority that whether Reel One is a private club is an issue of fact rendering summary judgment in the City’s favor inappropriate. I respectfully dissent in part, however, from the disposition of the case.
As noted by the majority, the City’s action is based in part on section 391-601, which prohibits businesses from permitting persons to pay to view or participate in “live sex and violent acts.... ” This provision does not separate or distinguish “sex” and “violent acts” and therefore, by its own plain language, prohibits only violent live sex acts or live violent acts that are accompanied by sex. See, e.g., Sekerez v. Youngstown Sheet & Tube Co., 166 Ind. App. 563, 567, 337 N.E.2d 521, 524 (1975) (holding that “and” and “or” as used in statutes are not interchangeable, being strictly of a conjunctive and disjunctive nature, respectively; thus, their ordinary meaning should be applied unless doing so leaves the meaning of the statute in doubt).
While I am certainly of the opinion that the government can restrict businesses from permitting people to pay to view or participate in live acts containing sex or violence or sexual violence or violent sex, the ordinance at issue herein prohibits only a live act containing both sex and violence. Inasmuch as we are not in the business of rewriting statutes or ordinances, we must apply this ordinance as drafted.
The City has not alleged explicitly or implicitly that any of the activities observed at Reel One involved violence. Indeed, the City’s complaint includes no reference to violence whatsoever. Consequently, I would reverse the grant of summary judgment in favor of the City and would remand with instructions to enter summary judgment for the appellants on the counts — III and VI — that rely on Section 391-601.