Indiana Appeals Court Upholds Adult Bookstore Restrictions
Ordinances Do Not Violate Owners' First Amendment Rights, Court Finds
Posted Dec 18th, 2007 03:58 PM by Peter Warren
— An Indianapolis appeals court has ruled against the owners of 231 Adult Plaza in their contention that Spencer County ordinances restricting the operation of their business are unconstitutional.
County regulations state that adult-oriented merchandise cannot exceed 35 percent of the store's total inventory, restrictions on nude dancing must be followed, and in that zone, there must be at least 1,000 feet of separation between the store and any home, church or school.
This ruling reaffirms that of the lower court, which found there to be no constitutional impediments in the county's ordinances.
In the 32-page decision by the three-judge appellate panel, Appeals Court Chief Judge John G. Baker wrote, "Plaza has failed to cast direct doubt on the county's rationale for the ordinances. ... The evidence shows that there are at least 34 alternative sites in the Spencer County on which Plaza could operate a sexually-oriented business and comply with the 1,000-foot restriction. Therefore, because the ordinances are designed to serve a substantial government interest while allowing for reasonable alternative avenues of communication, the dictates of the First Amendment are satisfied and Plaza's challenge fails."
Spencer County attorney Scott Wetherill told the Evansville Courier & Press
, "We are not there to padlock the doors and say they can't do anything on that site. If they want to operate a convenience store, gas station or restaurant, they can do that, but it must be in conformity with the zoning ordinance."
To ensure that Adult Plaza does
conform to the ordinance, Spencer County intends to monitor activity inside the business, and if any violation occurs, find its operators in contempt of court. A previous such ruling, issued after a witness testified that dancers in the establishment were exposing themselves to patrons, brought a fine of $30,000, which the business is appealing.
For now, the parent company of Adult Plaza, Plaza Group Properties LLC, is presented with the options of continuing to operate in the current location under compliance with the county's ordinance, re-locating to another zone that would allow it to carry more than 35 percent adult inventory, or appealing to the state Supreme Court.
Said Adult Plaza attorney Scott Nazzarine, "It's a pretty significant investment to move the store after it is set up. It's more of an economics issue, whether it is in their best interests to move where they could sell a higher percentage of [adult] products where they could make more money, or stay in their present location and sell a smaller percentage."
Nazzarine said it had not yet been decided whether the company would appeal last week's ruling, but it would likely stay where it is for the time being and abide by the county's restrictions.