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Saturday, November 03, 2007

Ind. Decisions - "Big-time attorneys argue adult plaza case"

Oral arguments took place Friday before a panel of the COA (Chief Judge Baker, Judges May and Crone) in the case of Plaza Group Properties v. Spencer County Plan Commission.

The ILB has had quite a number of entries on this dispute, summarized in this entry from July 5th, and including links to the trial court opinions. The first entry, from Jan. 16, 2006, was headed "Adult business dispute draws top lawyers to fight in Spencer."

Today Bryan Corbin of the Evansville Courier & Press reports on Friday's oral arguments, under the headline "Big-time attorneys argue adult plaza case":

INDIANAPOLIS — An adult business penalized for violating a Spencer County ordinance is appealing, claiming the county's attempts to regulate it out of existence are unconstitutional.

The dispute between 231 Adult Plaza and Spencer County officials has made its way to the Indiana Court of Appeals. On Friday, a three-judge panel heard arguments from nationally known lawyers on each side of the case.

The adult plaza is appealing a preliminary ruling by Spencer Circuit Court Judge Wayne Roell, who concluded in March the business had violated a county ordinance regulating sexually oriented businesses. Roell had sharply limited the amount of sex-related merchandise that 231 Adult Plaza could sell in its retail area to no more than 35 percent of inventory, although he allowed the business to continue operating.

Louis Sirkin, a Cincinnati attorney who has represented clients including Hustler publisher Larry Flynt in obscenity cases, argued on 231 Adult Plaza's behalf. Sirkin told the appeals court that Roell's earlier ruling granting summary judgment to the county should be reversed so the dispute can proceed to a trial.

Sirkin said Spencer County didn't adopt the ordinances until after the adult business opened in October 2005 at Indiana 231 and Interstate 64. He contended the ordinances did not apply and, in any event, they violated the First Amendment right of free expression. He argued Spencer County officials failed to prove any secondary negative effects, such as crime, were created by the business.

"The burden of proof is on the government; they have to show their studies are relevant to where the store is," Sirkin said. "All those studies are not relevant because of the rural nature of this particular community."

An attorney from Chattanooga, Tenn., who has helped municipalities write anti-obscenity ordinances, Scott Bergthold, represented Spencer County. He argued the county's zoning ordinance limiting the location of an adult business (no less than 1,000 feet from a residence, school or church) is constitutional. Bergthold said the adult business committed a violation when it made more than $5,000 worth of remodeling improvements to the former truck stop without seeking a building permit. It remained in violation because one of its buildings is 89 feet from a residence, Bergthold said.

The attorneys delivered their arguments from a podium inside the ornate, cavernous courtroom of the Indiana Supreme Court, which the appeals court panel used for the day. Limited to 30 minutes per side, neither lawyer got far into his argument before a judge would interrupt with a question — forcing the attorney to scramble for an answer and then try to pick up the thread of his argument before time ran out. The judges did not decide the dispute Friday, but will rule at a later date.

The long-running legal dispute began when Spencer County officials in late 2005 sought an injunction to stop 231 Adult Plaza from operating. The adult business moved out of its main building, but continued operating in an adjacent convenience store, with a gift shop selling adult novelties and a stage for exotic dancers.

Roell ruled in March the adult plaza had violated the county ordinance outlawing sexually oriented businesses within 1,000 feet of a home, church or school. In June, he found the adult plaza in contempt of court for violating his earlier ruling and ordered them to pay a $30,000 fine.

Posted by Marcia Oddi on November 3, 2007 08:30 AM
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions