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Tuesday, September 27, 2005

Ind. Courts - 7th Circuit hears adult-store debate

Ben Zion Hershberg of the Louisville Courier Journal writes today:

A lawyer for the city of New Albany told federal appeals court judges yesterday that an adult video store opened illegally on Main Street in February 2004, so it wasn't "grandfathered in" when the city adopted an adult-business ordinance later that year.

Scott Bergthold, a lawyer from Chattanooga, Tenn., who specializes in adult-business regulation, argued for New Albany in a hearing yesterday in the 7th U.S. Circuit Court of Appeals in Chicago.

Steve Mason, the lawyer representing New Albany DVD, argued that his client was grandfathered in because proprietor Danny Embry applied for a building permit to remodel the store in late 2003, well before New Albany enacted its adult-business ordinances. * * *

The hearing was requested by New Albany in its appeal of U.S. District Judge Sarah Evans Barker's decision in January ordering the city to let the store open.

In granting New Albany DVD a preliminary injunction against the city, Barker ruled that the city has the right to regulate adult businesses. But she said New Albany applied its rules "too narrowly" to the store, at 601 W. Main St., violating the business owners' constitutional right to freedom of expression.

Barker also said the store qualified as a "pre-existing business" under the adult-business ordinance and should be allowed to operate at its current location for at least two years so the owners can recover their investment.

Mason, New Albany DVD's lawyer, said he was surprised that the appeals court focused on the question of whether the store was grandfathered in.

Indiana law clearly gives businesses the right to keep operating if they are open before ordinances restricting them are enacted, Mason said.

Access Judge Barker's January ruling via this 1/13/05 ILB link. See also this 1/6/05 entry and this 3/8/05 entry on the decision to appeal Judge Barker's ruling.

Download or listen to an MP3 (you can put it on your iPod) of yesterday's oral arguments in New Albany DVD v. City of New Albany here.

Review the briefs here (type in "05-1286").

Posted by Marcia Oddi on September 27, 2005 06:21 AM
Posted to Ind. (7th Cir.) Decisions