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Friday, July 04, 2008

Ind. Courts - 7th Circuit has "yet to rule on adult bookstore in New Albany: New Albany DVD has stayed open" [Updated]

Dick Kaukas has an interesting story today in the wake of the July 1st decision by SD Indiana federal judge Sarah Evans Barker, who ruled in the Big Hat Books case on a lawsuit filed May 7th.

Judge Barker was also the judge in the New Albany adult video shop dispute, decided Jan. 6, 2005. As Ben Zion Hershberg of the Louisville Courier Journal reported at the time:

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 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.

Here is a link to that opinion.

On Sept. 27, 2005, the case was argued before the 7th Circuit, as Hershberg also reports.

From today's story:

Almost three years ago, lawyers for the city of New Albany and an adult bookstore presented arguments to a federal appeals court on whether the business should remain open.

But the case surrounding New Albany DVD, which also has a sign calling it "Cleopatra's super store," is still pending before the Chicago-based 7th U.S. Circuit Court of Appeals.

"I don't know" why there hasn't been a ruling, Scott Bergthold, a Chattanooga, Tenn., lawyer for the city, said this week, noting that oral arguments were presented on Sept. 28, 2005. * * *

New Albany DVD started doing business on Feb. 19, 2004.

Later that day, the New Albany City Council adopted a six-month moratorium on the opening of any sexually oriented company, and city officials ordered New Albany DVD to close.

But a few days later Mason sued in federal court, claiming the city had violated his client's right to free expression.

U.S. District Judge Susan Evans Barker ruled against the city, saying zoning ordinances adopted after officials had ordered the store closed were too broad. She ordered the city to let the store remain open. The city appealed.

A clerk in the federal appeals court office said when asked about the case this week that it was unusual for a case to go so long without a ruling.

"But that could be caused by the complexity of the issues," the clerk said.

Bergthold and Mason said the same court is also considering an adult-business case from Indianapolis. But they said it's unclear if the judges have linked the cases.

Every few months, Bergthold said, the appeals court automatically schedules a "settlement hearing," and both sides agree to postpone it because "there's no point before we know what the decision is."

Presumably the "adult-business case from Indianapolis" is another Judge Barker ruling - Annex Books Inc, et al v. City of Indianapolis - that is even older, from August 30th, 2004 -- see this ILB entry from Sept. 7, 2004. (Court of Appeals Docket #: 05-1926) Oral arguments in the as-yet-to-be-decided case were held before Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005.

[Updated 7/6/08] Note that in Annex Books, Judge Barker upheld provisions of an Indianapolis adult business ordinance. Some quotes from the 31-page, August 27, 2004 opinion (which the ILB has now located and made available here):

An ordinance is properly classified as content neutral if it does not seek to regulate the content of the expression (e.g., ban the sale of adult-oriented materials altogether) but rather imposes limitations only on the location of a business or its hours of operation.

Our review of the City’s adult entertainment business ordinance causes us to conclude that it is a permissible time, place and manner regulation. Chapter 807 does not ban adult bookstores instead it requires adult entertainment businesses to apply for a license, to meet certain premises requirements and to limit the hours of operation.

Whether the ordinance serves a substantial governmental interest again is a decision to be made in light of Supreme Court precedent and Seventh Circuit interpretations, and, again we find that the City’s ordinance passes constitutional muster. Secondary effects are those harmful side effects allegedly associated with the presence of adult entertainment businesses, such as increased crime, an increase in public sexual acts, the spread of sexually transmitted diseases and declining property values. * * *

The City urges the Court to sever any part of the ordinance it finds invalid so to avoid a ruling invalidating the whole. As explained above, we have found only the inspection provision, Sec. 807-302 (b), constitutionally deficient. * * * The judicial review provision, along with the licensing and premises requirements, operate independently from the inspection provision and as such are not affected by our invalidation of Sec. 807-302(b).

In summary, for the reasons stated above, we DENY Plaintiffs’ Motion for Summary Judgment and GRANT Defendant’s Motion for Summary Judgment on the first and second grounds (judicial review, licensure and premises requirements) and DENY the motion on the third ground relating to the unconstitutionality of warrantless inspections.

Note that the Court subsequently granted the Plaintiffs’ Motion for an Injunction Pending Appeal.

Posted by Marcia Oddi on July 4, 2008 09:17 AM
Posted to Ind. (7th Cir.) Decisions