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<br />(') <br /> <br />(-j <br /> <br />I <br />I <br /> <br />l) <br /> <br />Zoning Bulletin <br /> <br />October 25, 2009 I Volume 31 No, 20 <br /> <br />said it therefore must defer to the Board's interpretation of the <br />zoning regulations, unless the interpretation was "plainly incon- <br />sistent with the spirit of the rule." <br /> <br />Validity of Zoning Regulations-City ordinance <br />prohibits IIsexually oriented businessesll within <br />a certain distance of residential zones <br /> <br />Adult bookstore owner challenges ordinance as <br />unconstitutional, saying ordinance is not narrowly tailored <br />or justified <br /> <br />Citation: New Albany DVD, LLC v. City of New Albany, Ind., 2009 <br />WL 2882817 (7th Cir. 2009) <br /> <br />The Seventh U.S. Circuit has jurisdiction over Illinois, Indiana, and <br />Wisconsin. . <br /> <br />INDIANA (09/10/09)-New Albany DVD, LtC operated an adult <br />store in the city. The store did not provide live or recorded entertain- <br />ment on site. The store sold books, magazines, and videos which cus- <br />tomers could read or watch at home. <br />In March 2004, the city amended the zoning rules (the "Ordi- <br />nance") to forbid any "sexually oriented business" within 1,000 feet <br />of a church or any tract zoned for residential use. (Prior to passing <br />the Ordinance, the city had-just one day after it refused to carry out <br />a certificate of occupancy inspection for New Albany DVD's store- <br />enacted a six-month moratorium on new adult businesses.) <br />New Albany DVD's store was located within 175 feet from the <br />nearest church and 115 feet from the site of a proposed residen- <br />tial building. New Albany DVD brought a legal action against the <br />city. Among .other things, it argued that the Ordinance prohibited <br />free speech in violation of the First Amendment of the United States <br />Constitution. New Albany DVD said this was because: (1) the Ordi- <br />nance, which was based on the books' and videos' content or subject <br />matter, was not narrowly tailored to the city's justification of protect- <br />ing the public from "adverse secondary effects" from the adult book <br />and video store; and (2) the city's justification of protecting the public <br />from "adverse secondary effects" failed because' there was no proof <br />of such "adverse secondary effects." <br />The district court held that the Ordinance "likely [was] unconstitu- <br />tional because [it was] not narrowly tailored to its purpose." The dis- <br />trict court suggested that a "more appropriately tailored ordinance" <br /> <br />@ 2009 Thomson Reuters <br /> <br />7 <br /> <br />., <br /> <br />23 <br />