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Thursday, September 03, 2009

Ind. Decisions - 7th Circuit issues long-awaited decision in Annex Books

This ILB entry from August 24th was headed "Annex Books and New Albany DVD still awaiting decisions; September will mark the 4th anniversaries of their oral arguments before the 7th Circuit.". It began:

Here is Judge Sarah Evan Barker's August 27, 2004 opinion in Annex Books Inc, et al v. City of Indianapolis. In Annex Books, Judge Barker upheld provisions of an Indianapolis adult business ordinance.

The appeal was argued before a 7th Circuit panel of Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005. An opinion (05-1926) has yet to be issued.

Late today the 7th Circuit issued, in typescript, its opinion in Annex Books v. City of Indianapolis. In the 9-page opinion, Chief Judge Easterbrook writes:
Indianapolis revised its adultbusiness ordinances in 2003. These amendments expanded the definition of “adult entertainment business” to include any retail outlet that devotes 25% of more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices. (Adult “devices” include vibrators, dildos, and body-piercing implements.) See Indianapolis Rev. Code §807-103. Until 2003 the trigger had been 50%. Any “adult entertainment business” needs a license, must be well lit and sanitary, and may not be open on Sunday or between mid-night and 10 a.m. on any other day. Indianapolis Rev. Code §§ 807-202(a), -301(f), -302.

Four firms defined as “adult entertainment businesses” under the revised ordinance filed this suit, contending that the law violates the first and fourth amendments, applied to the states by the fourteenth. The district court enjoined one portion of the amended ordinance and held that plaintiffs are entitled to notice of inspections. 333 F. Supp. 2d 773, 787–89 (S.D. Ind. 2004). Indianapolis has not appealed from that portion of the decision. The district court rejected plaintiffs’ argument that the procedures for the issuance and judicial review of licenses permit the City to take too long, or afford it too much discretion. Id. at 778–83. Plaintiffs contest that portion of the decision, but it is supported by Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), and Thomas v. Chicago Park District, 534 U.S. 316 (2002). Indianapolis gives businesses provisional licenses while judicial review proceeds, Rev. Code §807-207(c), so its ordinance is easier to defend than the one sustained in Littleton. See Andy’s Restaurant & Lounge, Inc. v. Gary, 466 F.3d 550, 556 (7th Cir. 2006). We have nothing else to add to this portion of the district court’s thoughtful opinion.

That leaves plaintiffs’ challenge to the definition of “adult entertainment business” and the imposition of any limits on these firms, other than whatever rules apply to bookstores and video-rental outlets in general. * * *

The parties have pressed on us dozens of precedents, from this circuit and elsewhere, that do more to show the problems of interpretation and application created by the fractured decision in Alameda Books than to establish any concrete legal rule. * * *

But one of these decisions, in addition to Abilene Retail (cited above), offers a little assistance. San Antonio adopted a dispersal rule (1,000 feet between adult businesses) that applied to a set of outlets defined to include stores that did nothing but sell books, tapes, and DVDs, which customers could not watch on premises. The fifth circuit held in Encore Videos, Inc. v. San Antonio, 330 F.3d 288 (5th Cir. 2003), that this ordinance violated the first amendment, because San Antonio had not offered any evidence that adult video stores lacking facilities for on-premises viewing create the same secondary effects as other establishments. If Indianapolis cannot produce such evidence, satisfying Justice Kennedy’s cost-benefit standard, its ordinance must meet the same fate as San Antonio’s.

The judgment is affirmed to the extent that it sustained the licensing procedures but is reversed to the extent it concerns the coverage and substantive requirements, and the case is remanded for an evidentiary hearing consistent with this opinion.

Posted by Marcia Oddi on September 3, 2009 07:06 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions