Tuesday, May 06, 2008
Ind. Decisions - "Court won't hear adult plaza case"
As the ILB noted last Friday, May 2nd:
Notable transfer denials include Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al.. For background, see this ILB entry from Dec. 14, 2007.
Bryan Corbin of the Evansville Courier & Press reports today on the transfer denial, in a comprehensive story that begins:
The Indiana Supreme Court has declined to hear the appeal of the 231 Adult Plaza in Spencer County, Ind., letting stand a lower-court ruling that said the county could regulate the amount of sexually themed merchandise in the store's inventory.
Without a written opinion, the state's highest court denied transfer of the adult plaza's lawsuit from the Indiana Court of Appeals, which in December sided with Spencer County in the zoning dispute. The appeals court had found that the county did not violate the adult plaza's First Amendment free-expression rights when it regulated adult merchandise in the store through an ordinance.
By denying transfer, the state supreme court has ended the litigation — at least at the state level — in the lawsuit of Plaza Group Properties LLC vs. the Spencer County Plan Commission and Board of Commissioners. Plaza Group's attorney, Scott Nazzarine, said his client likely would not pursue an appeal in federal court.
Spencer County officials continue to monitor activities at the business and could seek to have it held in contempt of court if there are further violations, commission attorney John Wetherill said.
Plaza Group opened the adult business in October 2005 in a former truck stop at the interchange of State Road 231 and Interstate 64. Soon after, county officials amended their zoning ordinances to restrict adult businesses from operating within 1,000 feet of a home, church or school, and they sought a court injunction to stop the plaza's activities. While the adult business moved out of its main building, it continued operating in an adjacent convenience store, with a gift shop selling adult novelties and a stage for exotic dancers.
Under a preliminary injunction order last year, business owners agreed that less than 35 percent of their merchandise would be sexually oriented.
Last year, Spencer Circuit Court Judge Wayne Roell ruled the adult plaza violated the 1,000-foot restriction, and he later fined the business $30,000 for contempt of court after witnesses testified of dancers exposing themselves to patrons.
Plaza Group appealed, challenging the constitutionality of the county ordinance, but the appeals court in December sided with the county, which argued that one of the adult plaza's buildings was within 89 feet of an existing residence. Plaza Group then tried, unsuccessfully, to bring an appeal to the state supreme court.
That leaves matters where they were last December. Plaza Group legally could sell adult merchandise unrestricted if it simply moved the business to beyond the 1,000-foot radius, where the ordinance would not apply. Instead of moving, however, Plaza Group likely will continue to operate its gift shop while obeying the county's 35 percent inventory limit, Nazzarine said.
"As far as I know, the plans are to remain where they are and to abide by the law," he said.
"The county's goal has never been to shut down the business located at the adult plaza; it was just to ensure for public safety concerns that they abide by county ordinances," said Wetherill, the commission's attorney. "Our zoning ordinance does provide multiple locations for adult use in the county, just not there."