"New Albany adult video store can open, judge says" is the headline to this story by Ben Zion Hershberg in the Louisville Courier Journal today. Some quotes:
After 11 months of litigation, a federal judge has ordered New Albany to allow an adult video store to operate near downtown. Steve Mason, a lawyer for New Albany DVD, said he expects his clients to open the store at 601 W. Main St. early next week.The ILB last reported on this dispute in this Nov. 12, 2004 entry.The decision, issued Tuesday by U.S. District Judge Sarah Evans Barker, came in a lawsuit filed by the store's owners in which they claimed their constitutional rights were violated when the city shut it down.
Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance — enacted after New Albany DVD had tried to open — was too broadly written. * * * Barker's decision was on the store's request for an order allowing it to operate while the case is considered on its merits.
The legal dispute began last Feb. 19, when the video store opened for a few hours after a city inspector canceled a final inspection of the remodeled building that had been scheduled for that morning.
That evening the City Council adopted a six-month moratorium on the opening of any sexually oriented businesses in town, and city officials ordered the store closed on grounds that the owners hadn't obtained their final inspection and permits.
A few days later, lawyers for New Albany DVD filed suit in U.S. District Court, alleging that their clients' constitutional rights of free expression had been violated. * * *
In her decision, Barker said New Albany has the authority to regulate adult businesses. She also said the city can rely on evidence of the harm that such businesses do to other communities and doesn't have to gather evidence specific to New Albany — a point argued, at length, by lawyers and expert witnesses in the case.
But the city erred in attempting to regulate New Albany DVD through a zoning ordinance that is too broad, Barker said. To protect free-speech rights under the First Amendment, Barker said, restrictions on where adult businesses can operate must be "narrowly tailored."
The language in New Albany's ordinance prohibiting sexually oriented businesses from locating within 1,000 feet of a church is too broad, she said. She said it might be more appropriate for New Albany DVD's owners to agree not to operate on Sundays or at other times when functions are under way at the Main Street United Methodist Church, which is across the street from the store. * * *
Because there are no other adult video stores in the city, Barker said, the city is placing limits that are too restrictive on "constitutionally protected speech" by preventing New Albany DVD from operating. She said there are no "alternative channels" for the sale and rental of such materials in town.
Judge Barker's decision has not yet been posted on the SD Ind. website.
Posted by Marcia Oddi at January 6, 2005 07:29 AM