Agenda - Planning Commission - 04/07/2005

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Page 2 --March 10, 2005 Adult Entertainment-- Only adult business in city cannot operate in chosen location New ordinance states intended location too close' to church Citation: New Albany DVD LLC v. City of New Albany, U.S. District Court for the Southern District of Indiana, New Albany Div., No. 4 :04-cv-OOO52-SEB. WGH (2005) INDIANA (01/03/05)-- New Albany DVD LLC remodeled a building to mm it into an adult enterta/m-nent bus/ness selling sexually explicit DV'Ds for take-home use only. On the morning of the final inspection, a city official told New Albany DVD it had failed to comply with certain zoning provisions. A city moratorium was quickly enacted to halt the opening of adult businesses in the city. Soon after that, a new ordinance was enacted to prohibit adult businesses within 1,000 feet of a church. New Albany DVD was located within 1,000 feet of Main Street United Medaodist Church. The city claimed its ordinance was intended to com- bat the negative secondary effects of adult .businesses. After several additional rulings against it, New Albany DVD sued, clairaing its constitutional fights were violated by the new ordinance. DECISION: Judgment in favor of New Albany DVD. New Albany DVD's rights were violated. In general, a court would uphold a regulation of adult entertainment if it were designed to serve a substantial government interest and if reasonable avenues of communication remained available. In addition, a time-, place-, manner-regulation had to be justified without reference 'to the content of the regulated speech, and the regulation had to be narrowly tailored to serve the government's interest. The location restrictions in the ordinance were not narrowly.tailored to meet the city's interests without burdening substantially more speech than was necessary. As it currently stood, the restrictions applied to the only existing adult bookstore in New Albany, which obviously meant the constitutionally pro- tected speech at issue would be substantially burdened since there were no alternative channels for the sale and rental of adult materials by an avowedly adult entertainment business. Although the city argued some pornography was sold in convenience stores and small rooms in video stores within the city, this was not enough to show the ordinance did not substantially burden protected speeqh. Since the ordi- nance was aimed specifically at adult entertainment businesses, the only ac- ceptable alternative avenue for the sale or rental of the adult materials was another actual adult bookstore. Since there was none, the ordinance clearly burdened more speech than was necessary. see also: Pleasureland Museum Inc. v. Beutter, 288 F. 3d 988 (2002). see also: World Wide Video of Washington [nc. v. City of Spokane, 227 F. Sttpp. 2d ]]43 (2002). 148 © 2005 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048.