« Ind. Decisions - "By a vote of 6-4, the en banc U.S. Court of Appeals for the Seventh Circuit refuses to switch sides on a question of law that's already produced a 5-4 circuit split" | Main | Law - "Cass Sunstein's nomination to be head of the Office of Information and Regulatory Affairs has been approved by the Senate in a 57-40 vote" »

Thursday, September 10, 2009

Ind. Decisions - More on: " First, Annex Books, now New Albany DVD" [Updated]

Lesley Stedman Weidenbener has this report this afternoon on the Louisville Courier Journal website about the 7th Circuit's decision today in New Albany DVD (see ILB summary here). It begins:

A federal appeals court ruled Thursday that the city of New Albany must present clear evidence that an adult book store is causing excessive litter, crime or other problems before it can impose additional restrictions on its operations.

The Chicago-based 7th U.S. Circuit Court of Appeals also said that New Albany DVD – which has also been called “Cleopatra's super store” – can remain open pending a district court proceeding to consider those issues.

The decision by a three-judge panel of the appeals court comes nearly four years after the city and the book store made oral arguments in the case and just a few days after the court ruled in a similar Indianapolis case.

In the Indianapolis case, the court ruled that adult businesses selling books, movies and sex paraphernalia in the city will be able to open on Sundays – and 24 hours a day – unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

“These are two extremely significant opinions,” said Steve Mason, a Hollywood, Fla., lawyer who represents the New Albany DVD bookstore. “The court is saying if you’re going to put enhanced restrictions on them (adult bookstores), you have to have real evidence establishing the community is harmed in a real way. It isn’t enough for lawyers to say they cause crime and lower property values.”

See also this ILB entry from Sept. 5th and this one from Sept. 3rd.

[Updated Sept. 11] An updated version of the story, by Weidenbener and Grace Schneider, appears today in the LCJ. Some additional quotes:

U.S. District Judge Sarah Evans Barker ruled against the city, saying its zoning ordinances adopted after officials ordered the store closed were too broad. She ordered the city to let the store remain open. The city then appealed to the court of appeals, which led to Thursday’s ruling.
Advertisement

In it, the appeals court concluded that New Albany’s ordinance was not too broad and said the district court should not have issued an injunction preventing it from taking effect and allowing the store to open.

That part of the ruling was hailed as “an absolute victory for municipalities” by a spokeswoman for a group of Kentucky and Southern Indiana residents who fight adult-oriented businesses. “The court has affirmed that the city has the right to regulate” adult businesses, said Mary Ann Gramig, director of policy and operations with ROCK – Reclaim Our Culture, Kentuckiana.

However, the appeals panel didn’t reverse the injunction. Instead, the panel concluded the city needed to offer more proof that additional regulations were warranted, saying “sellers of books and movies enjoy constitutional protections that sellers of snow shovels, shoes, and parakeets do not.”

The panel said many of the studies offered by the city to justify zoning restrictions were based on concentrations of adult businesses, including some offering live entertainment that New Albany DVD does not have. “They do not necessarily demonstrate that businesses selling books and DVDs have the same consequences for morals offenses (prostitution, lewd exhibition) or other kinds of crime,” the court said.

The city also cited anecdotal evidence about pornographic litter and suggested that adult bookstores could expose customers to thefts.

But the court said the thefts argument was “paternalistic” and the city had not proven a litter problem. * * *

Mason said the city “doesn’t have a prayer” of presenting strong enough evidence to justify closing the store.

“They’re going to be liable for our fees, all our expenses” if they proceed and lose, he said. “It’s going to be a big bill and they probably don’t have the political and financial sense” to settle the case.

Posted by Marcia Oddi on September 10, 2009 06:02 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions