Indiana adult bookstore ordered to cease operating as such

Last week the Indiana Court of Appeals issued this decision.

A little background. Once upon a time, in early 2005, there was a plot of “land at the southwest corner of the intersection of highways I-65 and State Road 250 in an unincorporated area [that] was developed — with a building, driveway, and signage for ‘a tenant’ constructed as authorized by permits from Jackson County.” Sound like a good spot for an adult bookstore? It presumably was, at least then, a legal spot for one.

Then, on August 16, 2005, the Jackson County Board of Commissioners adopted Ordinance 2005-5, titled “Sexually Oriented Business Ordinance.” The ordinance stated that its purpose was to “regulate sexually oriented businesses [i.e., SOBs] in order to promote the health, safety and general welfare of the citizens of Jackson County, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within unincorporated areas of Jackson County.” As the court of appeals observed, “[t]he operative effect of the ordinance was to prohibit a sexually oriented business from operating within 1,000 feet of a residence….”

What ensued was a game of cat and mouse. The county said that the SOB ordinance was effective upon adoption, August 16, “except for the provision establishing a fine for violation of the ordinance — which would not become effective until September 1, 2005, after publication of the ordinance in two successive weekly editions of the local newspaper.” The adult bookstore (Lion’s Den) didn’t see it that way. So just three days later, on August 19, “on the improved property at the intersection of I-65 and State Road 250, Lion’s Den opened as an adult bookstore and sexual device shop. Lion’s Den was within 1,000 feet of a residence, and it had obtained no license to operate a sexually oriented business.”

The county then (a) sued Lion’s Den, (b) amended its SOB ordinance, (c) amended its lawsuit against Lion’s Den, (d) amended its zoning ordinances to cover SOBs, and (e) sued Lion’s Den again for violating all these ordinances.

The court of appeals ruled for the county across the board.

Lion’s Den had argued that the 2005 SOB ordinance were not properly adopted because they were, functionally, zoning — not licensing — ordinances and therefore subject to statutory notice requirements that the county did not follow when adopting them. The court rejected the argument, noting that the county had “broad home rule authority to ‘regulate conduct … that might endanger the public health….’”

From there the court of appeals rejected Lion’s Den’s arguments concerning (a) grandfathering, (b) narrow tailoring, and (c) overbreadth. In rejecting the grandfathering argument, the court of appeals relied primarily on a 1914 case from the Indiana Supreme Court. And in rejecting the latter two arguments, I believe, the court relied on a body of caselaw that examines zoning ordinances. Hmmm. I sense this ain’t over.

Whatever feelings you might harbor on the subject, it’s easy to tell that the case (and appeal) was expertly litigated by both sides.

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