concurring in part and dissenting in part.
I agree that whether Reel One is a “private club” is a question of fact and that *378therefore, summary judgment was improperly granted in favor of the City. However, I respectfully disagree with Chief Judge Baker insofar as he construes the ordinance to target “only violent live sex acts or live violent acts that are accompanied by sex.” Baker, C.J., concurring in part and dissenting in part as referenced in Judge May’s lead opinion at Footnote 4. Op. at 374.
The ordinance in question prohibits a business where persons pay to view or participate in “live sex and violent acts.... ” In my estimation, the Chief Judge takes unwarranted liberties with the language chosen by the City. He engrafts the word “violent” onto the phrase “live sex” acts and then in turn engrafts the word “sex” onto the phrase “violent acts.” He does so under the guise of honoring use of the conjunctive “and” between the respective phrases as set forth in the ordinance.
It is possible to read the conjunctive “and” to delineate two types of conduct which are not necessarily interrelated. Live sex acts are prohibited, as are violent acts. Perhaps a danger is perceived in prohibiting all violent acts because such creates an arguably unconstitutional vagueness and overbreadth problem.
My reading of the precise language of the ordinance tells me that “live sex” acts are prohibited with or without violence being involved. But the ordinance purports to go further and prohibit “violent acts.” As the lead opinion notes, the ordinance defines “[l]ive sex and violent act as including any of several sex acts, though it does not appear to address violent acts.” Op. at 373-74. Unless some sexual connotation is read into the prohibition against violent acts, as is done by Chief Judge Baker, the prohibition might seem to create an incipient problem of vagueness and overbreadth. For example, to prohibit “pay to view” all violent acts would forbid the Golden Gloves competition, not to mention NFL football contests.
Chief Judge Baker’s separate opinion references that “we are not in the business of rewriting statutes or ordinances, [and that accordingly] we must apply this ordinance as drafted.” Op. at 373. But I conclude that the Chief Judge does not adhere to his own cautionary advice and in fact does rewrite the ordinance in a seeming attempt to salvage the entirety of the legislation.
The preferable course, I believe, would be to view the intent of the ordinance as a regulation against charging a fee for sexual voyeurism and/or participation in live sex acts. The thrust of the ordinance is aimed at sexual activity whether or not violence is also involved. The position taken by the Chief Judge, however, shifts the focal emphasis of the prohibition from sex acts to acts of violence. I do not believe this to have been the intent of the City Council. In this respect, and as observed in Judge May’s opinion, no contention is made by the City that Reel One has violated the “violent acts” component of the ordinance.
This then presents to us an opportunity to consider the two components of the prohibition as severable. I discern that the City Council would have passed the ordinance without any language concerning “violent acts.” See State v. Barker, 809 N.E.2d 312 (Ind.2004), reh’g on other grounds 826 N.E.2d 648; Municipal City of South Bend v. Kimsey, 781 N.E.2d 683 (Ind.2003). That phrase in the ordinance is therefore severable from the remainder of the legislation, which may be held valid and enforceable. See Hobble v. Basham, 575 N.E.2d 693 (Ind.Ct.App.1991). As noted by Judge May, however, the “violent acts” provision is not involved in this case and the issue need not be addressed.
*379If the situation were otherwise, I would apply the doctrine of severability in the case before us and would excise the words “violent acts” from the ordinance so as to give full effect to the sexual connotation of the ordinance thus achieving what I deem to be the principal thrust of the City’s legislation.
As earlier noted, I concur in the holding of the majority that whether Reel One is a “private club” is a question of fact and would remand for further proceedings.