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Wednesday, October 11, 2006

Ind. Decisions - 7th Circuit rules in Gary "sexually oriented businesses" case

In Andy's Restaurant et al v. City of Gary, a 14-page opinion, Circuit Judge Kanne writes:

This appeal concerns the constitutionality of an ordinance enacted by the City of Gary (“City”) affecting “sexually oriented businesses.” In a thorough and well reasoned opinion, Magistrate Judge Rodovich granted summary judgment for the City on the declaratory judgment action filed by some of the businesses affected by the ordinance. We affirm. * * *

The plaintiffs’ argument can be organized as follows: the Ordinance discriminates on the basis of content, and, therefore, should be analyzed under strict scrutiny; even when analyzed under lesser, intermediate scrutiny, the City has not met its burden of justifying the Ordinance; and that the Ordinance acts as an impermissible prior restraint on speech.

[In addition to a thorough First Amendment analysis under Part II, A, the Court in B (p. 11) looks at "Fourth Amendment and Indiana Law"]

Plaintiffs argue that the Ordinance allows for searches in violation of the Fourth Amendment and that the Ordinance is preempted by Indiana Law. Both of these arguments are waived because the plaintiff failed to raise them before the district court. * * *

Plaintiffs also attempt to raise a preemption argument relying on Indiana law. Before the plaintiffs filed their brief in the district court, the Indiana Attorney General asked for permission, which was granted, to file an amicus brief with the district court addressing the issue “that state alcoholic beverage statutes preempt local regulation of adult entertainment establishments.” See Ind. Code § 7.1-3-9-6 (prohibiting certain local interference with liquor licenses provided by the state).

The plaintiffs then filed their brief opposing summary judgment without raising this issue. The very next day the Indiana Attorney General informed the district court that no amicus brief would be filed because no state law issues had been raised by the briefing.

Plaintiffs now attempt to argue that the Ordinance is preempted by Indiana law. But their earlier approach in the district court has deprived us of an analysis by the magistrate judge (and the views of the Indiana Attorney General), and, therefore, plaintiffs have waived the issue. See Estremera, 442 F.3d at 587.

Accordingly, the grant of summary judgment in favor of the City of Gary is AFFIRMED.

Posted by Marcia Oddi on October 11, 2006 11:08 AM
Posted to Ind. (7th Cir.) Decisions