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Sunday, December 16, 2007

Ind. Decisions - More on "Judge says Spencer County can control adult business"

More on Thursday's COA ruling in In Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al. [see ILB entry here - 2nd case] -- Bryan Corbin of the Evansville Courier & Press reported yesterday on the impact of the COA ruling:

Now that an appeals court has ruled it was constitutional for Spencer County to try to restrict an adult business, county officials intend to monitor activities inside the 231 Adult Plaza and take further action if they witness any violations, their attorney said.

Deciding a long-running legal dispute, the Indiana Court of Appeals ruled Thursday against the owners of 231 Adult Plaza, who had contended the county's ordinances restricting adult businesses violated their First Amendment free-expression rights.

Whether the adult plaza will appeal is undetermined. Scott Nazzarine, one of its attorneys, said the appeals court decision reinforces the status quo — meaning the plaza can remain open as a commercial business as long as the adult-oriented merchandise it displays does not exceed 35 percent of inventory and restrictions on nude dancing are followed.

"All the ruling did is affirm what the trial court did a long time ago," Nazzarine said.

"We are not there to padlock the doors and say they can't do anything on that site," said Scott Wetherill, attorney for the Spencer County plan commission. "If they want to operate a convenience store, gas station or restaurant, they can do that, but it must be in conformity with the zoning ordinance." * * *

Plaza Group Properties has several options. It could appeal to the state Supreme Court. It could continue operating at the I-64 exit within the current ordinance, meaning its display of adult-themed merchandise would have to be less than 35 percent of its inventory. Or it could relocate to one of the other Spencer County zones that aren't within the 1,000-foot restriction.

"It's a pretty significant investment to move the store after it is set up," said Nazzarine.. "It's more of an economics issue, whether it is in their best interests to move where they could sell a higher percentage of (adult) products where they could make more money, or stay in their present location and sell a smaller percentage."

For the time being, Nazzarine said, adult plaza likely will stay put and abide by the ordinance. He did not know if it would appeal Thursday's ruling. It is appealing the earlier $30,000 fine, however, he said.

For background, check this ILB entry from Nov. 3rd.

Posted by Marcia Oddi on December 16, 2007 08:47 AM
Posted to Ind. App.Ct. Decisions