Agenda - Planning Commission - 01/07/2010

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October 25, 20091 Volume 31 No. 20 Zoning Bulletij:} would limit the prohibition on sexually oriented businesses to within a certain distance of "occupied residences." The district court issued an injunction allowing New Albany DVD to open its store. The city appealed. DECISION: Remanded. The United States Court of Appeals, Seventh Circuit, held that the Ordinance was not, as the district court had concluded, unconstitu- tional because it was not narrowly tailored to its purpose: True, the regulation of adult businesses has to be narrowly tailored to the jus- tification for the regulation. However, "narrow tailoring," said the court, "does not mean that the ordinance must be the least restrictive possible regulation." As long as some regulation is justified, "a city has considerable discretion on matters of detail." Here, found the court, zoning rules similar to the Ordinance had been "too widely used, arid too often sustained, to be upset as 'not narrowly tailored.''' Moreover, the court found that the Ordinance's prohibition on "sex- ually oriented business" within 1,000 feet of churches or residential zones did not prohibit New Albany DVD or other adult establish- ments from operating in "portions of the [c]ity suited to bookstores." More land was available in the town for adult establishments than wa,s put off limits by the Ordinance. 'The court also addressed New Albany DVD's argument that the city's justification for the Ordinance failed: Again, New Albany DVD , had argued that the city's justification of protecting .the public from "adverse secondary effects'" failed because the city had not shown that book and video. stores offering only take-home items caused. any untoward secondary effects.,For its justification of the Ordinance, the city had relied on studies 'conducted in other cities that showed a con- centration of adult businesses in a part of a city was associated with higher crime and lower property values. The court agreed with New Albany DVD that those studies reflected 1:he effects of businesses' of- fering adult live entertainment; the city had failed to show that book and video stores had the same consequences. See also: City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S. Ct. 1728, 152 L. Ed. 2d 670, 30 Media L. Rep. (BNA) 1769 (2002). See also: City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29,12 Media L. Rep. (BNA) 1721 (1986). See also: Annex Books, Inc. v. City of Indianapolis, Ind., 2009WL 2855813 (7th Cir. 2009). 8 @ 2009 Thomson Reuters 24 ,n :1 'i ' !\ 'J II I. () I . " I I I I J,J