Court rules on adult-business ordinance

Back to TopE-mailPrintBookmark and Share

Six years after the city of Indianapolis amended its adult-business ordinances, the 7th Circuit Court of Appeals has ordered the District Court to hold an evidentiary hearing on whether the restricted hours in the new ordinance violate the businesses' constitutional rights.

In Annex Books, et al. v. City of Indianapolis, Ind., No. 05-1926, several adult book stores filed suit after the city expanded the definition of adult entertainment business to include those with more than 25 percent of their inventory consisting of adult literature, films, or devices, or if at least 25 percent of a business's revenue came from adult-themed items. Prior to the amendment, to qualify under the definition, the requirement was 50 percent. The ordinance also required businesses to have licenses, be well-lit and sanitary, and not to be open on Sundays or between midnight and 10 a.m. on other days.

The only issue on review today from the original challenge is the definition of adult entertainment business and the imposition of limits on these stores that other general books stores and video outlets don't face.

The city argued the restrictions were justified because they reduce crime and other secondary effects associated with adult businesses. The city relied on Justice Anthony Kennedy's reasoning in Los Angeles v. Alameda Books, Inc. 535 U.S. 425 (2002), as well as a study it conducted in 1984 before adopting the original ordinance.

But the city relied on studies that don't deal with the exact issue before the court nor do the studies show that an increase in adult businesses' hours is associated with more crime, wrote Chief Judge Frank Easterbrook. The studies the city used concern businesses with live sex shows, private booths, or both; only one of the plaintiffs in the instant case offers any kind of live entertainment.

"Indianapolis has approached this case by assuming that any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city," he wrote. "But because books (even of the 'adult' variety) have a constitutional status different from granola and wine, and laws requiring the closure of bookstores at night and on Sunday are likely to curtail sales, the public benefits of the restrictions must be established by evidence, and not just asserted."

The Circuit Court noted that ordering the District Court to hold an evidentiary hearing and apply immediate scrutiny isn't helpful to the judge or lawyers, but it is possible to be more concrete in arguments supporting the ordinance thanks to Justice Kennedy's opinion in Alameda Books, wrote the chief judge.

A city must advance some basis to show its regulation has the purpose and effect of suppressing secondary effects while leaving the quantity and accessibility of speech substantially intact. He insisted the benefits be compared to the detriments, among other things, Chief Judge Easterbrook wrote.

"These thoughts should give some structure to the hearing on remand - though we recognize that, because crime and speech cannot be reduced to a common metric, a direct comparison (how much speech should be sacrificed to achieve how much reduction in crime?) is difficult if not impossible," he wrote.

Chief Judge Easterbrook also suggested the reasoning in Encore Videos, Inc. v. San Antonio, 330 F.3d 288 (5th Cir. 2003), may provide some assistance on remand.


Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?