(CN) – An Indiana city’s zoning restrictions for adult stores are too vague, the 7th Circuit ruled. “The sellers of books and movies enjoy constitutional protections that sellers of snow shovels, shoes, and parakeets do not,” Chief Judge Frank Easterbrook wrote.
New Albany DVD operates an adult bookstore in New Albany, Ind. After applying for all the required zoning permits in 2003, New Albany’s city council refused to carry out the final inspection that would allow the store to open. On the same day, the council placed a six-month moratorium on new adult businesses, later amending it to forbid “sexually oriented” businesses from operating within 1,000 feet of any church or residential area.
New Albany DVD is located within 175 feet of a church and 115 feet from a proposed residential building.
A 2005 district court injunction allowed the store to open despite the new regulations. The city of New Albany appealed.
The store said the change in zoning law violated the First Amendment because it “narrowly tailored” the regulations based on what a store sells. New Albany DVD claimed the injunction was appropriate, because the city couldn’t prove that selling adult materials had a negative impact on the area.
The city, however, argued that adult businesses tend to attract more crime and reduce property values. It also noted that adult stores often produce adult-oriented litter that’s harmful to children.
But Judge Easterbrook pointed out that the city council relied on studies involving adult businesses that offer live entertainment and peep shows. The court said the town needs to draw a distinction among different kinds of adult businesses.
The Chicago-based court also dismissed as “paternalistic” the city’s argument that adult-store customers make easy targets for thieves, because they often pay in cash.
“Why can’t customers make their own assessment of risks?” Easterbrook asked.
“Anyway, if an adult bookstore located 200 feet from a church attracts thieves, won’t a bookstore located 1,500 feet from a church do the same?” he added.
The three-judge panel said New Albany must provide stronger evidence that either the store would produce an inordinate amount of pornographic litter or would encourage thefts.
The judges ordered a new hearing, but allowed New Albany DVD to stay open “pending the outcome of this hearing.”