Posted by: Patricia Salkin | September 5, 2011

Indiana Appeals Court Upholds Adult Use Licensing Ordinance and Determines that Adult Book Store was Not Entitled to Nonconforming Use Status

The Indiana Court of Appeals affirmed a permanent injunction against the Lion’s Den, an adult book store and sexual device shop that was sued the same day it opened within 1,000 feet of a residence in an unincorporated area of Jackson County. 

The county Board of Commissioners sought an injunction on Aug. 19, 2005, and on Aug. 30, 2005 added additional licensing provisions to the county’s sexually oriented business ordinance.  The amended ordinance included a one-year amortization period to allow existing businesses that were operating lawfully a chance to recoup their investment and relocate, as long as such businesses applied for a license within 30 days.  Months later, the board amended the zoning ordinance, to clarify that sexually-oriented businesses were allowed in general business, industrial and agricultural districts. 

The Lion’s Den did not apply for a license, but argued against the injunction by claiming that it was “grandfathered” as a pre-existing non-conforming use, and also challenged the constitutionality of the sexually oriented business ordinance.  The trial court granted a permanent injunction requested by the county. 

On appeal, the Court of Appeals held that the county had authority to enact a licensing ordinance aimed at safeguarding public health, safety and welfare.  The appellate court further found that the Lion’s Den had not proven that it was a lawful establishment prior to the enactment of the ordinance, and therefore did not have a vested property right protected by the due process or takings clauses.  Additionally, the appellate court rejected constitutional claims, holding that the licensing ordinance did not infringe upon free speech rights because it was narrowly tailored, and placed reasonable time, place and manner restrictions on a business that had 25 percent or more of its stock-in-trade devoted to sexually oriented materials. 

Uniontown Retail #36 v. Bd. Of Commissioners of Jackson County, 950 N.E.2d 332 (Ind. App., 2011 6/7/2011) 

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/06071101cld.pdf


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