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Wednesday, January 06, 2010
Ind. Courts - "Business sues Mishawaka over ordinance on sexual devices"
Sue Lowe reports today in the South Bend Tribune:
The city of Mishawaka has stopped Pleasureland Museum from selling "sexual devices."So, now the owner is taking the city back to federal court to challenge the part of Mishawaka's ordinance regulating sexually oriented businesses.
The lawsuit challenges the city's right to prohibit the sale of sexual devices at the business at 114 W. Mishawaka Ave.
The lawsuit was filed by attorneys Fred R. Hains and Peter M. Yarbro on behalf of Pleasureland Museum Inc.
The license to operate the business is held by Antonio Macri, and Yarbro confirmed that Macri is the owner of the business.
Macri was not available for comment Tuesday at the Pleasureland location in Mishawaka or the one in Osceola. Ed and Shirlee Balanow, who owned the business when Mishawaka passed the ordinance regulating it in 1999, are both now deceased. The Balanows filed a lawsuit challenging the constitutionality of the ordinance shortly after it was passed.
The city stopped enforcing a part of the ordinance that required that an applicant for a license to run or work at a sexually oriented business provide their Social Security number, home address, fingerprints and a photograph after that requirement was found unconstitutional in a case involving a Cumberland, Wis., ordinance.
In 2002 the 7th U.S. Circuit Court of Appeals upheld the city's definition of a sexually oriented business and the city's right to require a license to operate or work at one.
The case was returned to U.S. District Court Judge Allen Sharp for a ruling on whether the city could restrict the sale of sexual devices.
According to the latest lawsuit, no action was taken by either side on that question, and the case was dismissed in 2003.
The city didn't enforce the part of the ordinance prohibiting the sale of sexual devices until Pleasureland's most recent annual permit renewal, according to the lawsuit.
Mayor Jeff Rea said he has been told by his attorneys not to talk about the lawsuit while it is pending.
But he did say that if a policeman doesn't write a speeding ticket at one location for five years, that doesn't mean the speed limit there has changed.
Attorneys for Pleasureland argue that the prohibition against the sale is a violation of the right to privacy and that the definition is too vague. They also argued that enforcement of the ordinance is arbitrary.
"The city has conceded that sexual devices which are sold in pharmacies are not prohibited, but those previously sold by Pleasureland are prohibited," the attorneys wrote.
The ordinance also prohibits the sale of items including muzzles, whips, chains, leather restraints and racks. The lawsuit said those items remain available in the city, including at pet stores, tack shops, hardware stores, department stores and furniture stores.
Pleasureland lawyers ask that the city be prohibited from enforcing the part of the ordinance concerning sexual devices.
Posted by Marcia Oddi on January 6, 2010 11:04 AM
Posted to Indiana Courts