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Tuesday, October 19, 2004

Indiana Law - Cities battle adult stores in courts

"Cities battle adult stores in courts: Most recent rulings favored regulators" is the headline to this feature today in the Louisville Courier-Journal. Some quotes:

Legal battles are raging across the country over attempts by local governments to regulate adult businesses — with at least 10 cases decided by federal appeals courts this year.

"There is more adult-business litigation under way now than I've ever seen," said C. Michael Hatzell, a lawyer who represents several adult businesses in a dispute with metro Louisville.

Seven of the 10 rulings handed down this year have gone against adult businesses, according to a review by Eric Kelly, a lawyer and professor of urban planning at Ball State University in Muncie, Ind., who specializes in such issues. He said it appears governments are doing a better job of drafting ordinances that don't violate the free-speech rights of the business owners.

In such litigation, adult businesses typically contend that the regulations violate their First Amendment rights of free speech. For their part, local governments say they are simply trying to establish where such businesses can operate, and when. * * *

U.S. Supreme Court rulings have made it clear that local governments have the authority to regulate adult businesses by establishing where they can operate and when, Kelly said. But lawsuits around the country are raising questions about how those regulations are being applied and whether they impose limits that are too stringent on the business operators' rights.

Hatzell said there is so much litigation now because "any time you try to legislate morality, it will be challenged."

Kelly said the 10 federal appeals decided this year are a strikingly large number involving the regulation of a single industry by local governments. The adult-entertainment industry, he said, "is very aggressive in trying to mold the law" to its advantage. * * *

The most recent Supreme Court decision on the matter, issued in June, reinforced local governments' authority to license adult businesses, Kelly said. It answered a question about how adult-business operators must be allowed to appeal adverse decisions by municipal officials, he said. Now the adult industry's lawyers are focusing on other issues. A prominent question, Kelly said, is what kind of evidence municipalities must provide to the courts about adult businesses' impacts on their neighborhoods. Industry lawyers want the courts to require specific proof of increased crime, falling property values or other problems caused by adult businesses before local governments strictly regulate them, Kelly said.

Lawyers for local governments want the courts to accept general evidence, including impact studies from other communities. Evidence of pornographic litter and prostitution around adult stores in Spokane, Wash., was a deciding factor in that city's winning a 9th U.S. Circuit Court of Appeals decision in May over World Wide Video.

In Louisville, lawyers for the city and for two dozen adult businesses, including Pure Pleasure, have argued recently before Jefferson Circuit Judge Steve Ryan about whether evidence about the impact of adult businesses on neighborhoods should be admitted at this point in the case. * * *

In Indiana, an adult video and novelty store called New Albany DVD is suing that city in federal court, saying it was illegally shut down in February — only an hour or two after the City Council imposed a six-month moratorium on the opening of sexually oriented businesses.

The store's lawyer argues that the city violated his clients' First Amendment rights by closing the store and that it must submit specific evidence about the impact of adult businesses on neighborhoods if New Albany DVD is to be prevented from reopening. City officials shut the store down by citing its lack of building and zoning permits. New Albany DVD's operators said the city illegally refused to perform a final inspection they had requested.

In August, U.S. District Judge Sarah Evans Barker, who is handling the New Albany case, upheld the authority of the city of Indianapolis to license and inspect stores selling sexually explicit videos and magazines. She cited the Supreme Court ruling in June that supports the licensing authority of local government and questioned the analysis of an expert witness who testified that crime rates didn't increase around the store. New Albany DVD is using the same expert witness — psychologist and sociologist Daniel Linz.

Steve Mason, a lawyer for New Albany DVD, said the August ruling shouldn't affect the case because his client's store is different. Barker is expected to schedule a hearing in the suit this fall or perhaps issue a ruling based on documents already filed.

Judge Barker's 8/27/04 decision in Annex Books v. Indianapolis is discussed (and linked to) in this 9/15/04 Indiana Law Blog entry. On page 10 of her opinion, Judge Barker cites to the recent U.S. Supreme Court decision, City of Littleton, Colorado v. Z.J. Gifts, 124 S. Ct. 2219 (2004) (available here). The New Albany case is discussed in this 9/7/04 entry. The May, 2004 9th Circuit decision mentioned above, World Wide Video v. City of Spokane, is available here.

Posted by Marcia Oddi on October 19, 2004 07:41 AM
Posted to Indiana Law