Court Doesn’t Buy New Albany’s Porn Litter, Theft Complaints

Sep 14, 2009 11:45 AM PST
NEW ALBANY, Ind. — In a second federal appeals court ruling on an Indiana zoning ordinance in a week, a panel has decided that New Albany DVD can continue operating as an adult bookstore.

The 7th U.S. Circuit Court of Appeals said that the city of New Albany’s zoning restrictions for adult stores are too vague and that city leaders must provide stronger evidence that either the store would produce an inordinate amount of pornographic litter or would encourage crime, particularly theft.

In the case, the 7th Circuit said, “the volume of complaints exceeds the number of genuine problems.”

After applying for all the required zoning permits in 2003, New Albany's city council refused to carry out the final inspection that would allow New Albany DVD to operate an adult bookstore.

That same day, council members also placed a six-month moratorium on new adult businesses, later amending it to outlaw sexually oriented businesses from operating within 1,000 feet of any church or residential area.

New Albany DVD, which claimed the change in zoning violated the 1st Amendment because it tailored the regulations based on what the store sells, is located within 175 feet of a church and 115 feet from a proposed residential building.

A 2005 federal court injunction allowed the store to open despite the new ordinance, and the city of New Albany appealed that decision.

New Albany DVD claimed the injunction was appropriate, because the city couldn't prove that selling adult materials had a negative impact on the area.

The 7th Circuit, based in Chicago, said that the city of New Albany needs some evidence that thefts are a serious problem.

“New Albany has not supplied evidence that ‘fairly supports’ the idea that adult bookstores located near churches or residences attract thieves who then steal from the local denizens as well as the stores’ customers,” the court said. “We don’t say that the city will be unable to produce this evidence, but the lack of good evidence to this effect in the record — coupled with evidence implying that take-home adult stores do not have adverse secondary effects — is enough to require an evidentiary hearing.”

The 7th Circuit, also skeptical of the “litter” justification, said that New Albany should have paid closer attention to the lawful objective of zoning.

“For the [litter] justification to work, it will be necessary to establish (a) how much sex-oriented litter an adult bookstore generates, (b) who is likely to see that litter in the parts of New Albany where adult bookstores are allowed to operate; and (c) how much adult litter will remain in New Albany’s central business area (generated by adult corners of other businesses) if plaintiff is exiled to an industrial district or highway,” the court said. “Otherwise evidence about litter cannot support the sort of regulation that New Albany has enacted.”

But the court said that the city could go back to the drawing board and rework the ordinance.

“New Albany may be able to resuscitate its anti-litter rationale by showing that the zoning law moves litter to where children (and sensitive pedontists) won’t see it,” said the court, noting that one of the city’s witnesses was a local pedontist.

The court ordered a new hearing, but allowed New Albany DVD to stay open pending the outcome.

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