Case Remanded For Hearing When Evidence Does Not Support Rationale For Adult Business Regulation
NEW ALBANY DVD v. CITY OF NEW ALBANY (September 10, 2009)
New Albany DVD set out to operate an adult entertainment business in New Albany, Indiana. It purchased property, obtained licenses and renovated a building. Although the land was properly zoned, the City refused to conduct a final inspection, a requirement for occupancy. Instead, it imposed a moratorium on new adult businesses. During the moratorium, it changed the zoning rules to prohibit the operation of an adult business on the property selected by New Albany DVD. The new rules prohibit the operation of an adult business within 1000 feet of a church or any property zoned residential. The site is within 200 feet of both. New Albany DVD brought suit under § 1983, alleging a violation of the First Amendment. The district court held that the ordinance was likely unconstitutional and issued an injunction allowing New Albany DVD to open. The City appeals.
In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner remanded. The Court first disagreed with the lower court's rationale -- that the regulation was not narrowly tailored for its purpose -- for issuing the injunction. Although Alameda Books and other cases require narrow tailoring of regulations of adult businesses, the Court concluded that the dispersal regulation at issue had often been used and sustained after challenge. The Court went on, however, to agree with the court’s result under a different rationale. It noted that the studies relied on by the City focused on live-entertainment businesses. New Albany DVD offers take-home materials only. The City’s attempts to overcome this hurdle by offering anecdotal evidence of increased litter and theft was rejected as well. The Court agreed that the City might be able to use those justifications, but concluded that sufficient evidence did not exist in the record. Finally, the Court referred, as it did in its earlier Annex Books opinion (see post), to Justice Kennedy’s opinion in Alameda Books as a guide to the evidence required under the intermediate scrutiny standard.
