Posted by: Patricia Salkin | February 8, 2014

Fed. Dist. Court of Indiana Upholds City Ordinance Restricting the Location of an Adult Entertainment Business

BBL, Inc. sought to open a sexually oriented business called Showgirl in Angola, Indiana. Showgirl would be a venue that serves food and beverages and presents minimally clothed female performance entertainment. Under Angola’s Unified Development Ordinance Section 5.66 sexually oriented businesses were required to obtain an improvement location permit, to be at least 1,000 feet from “residential zoning districts,” and to be at least 1,000 feet away from public gathering places. Furthermore, the Angola Common Council adopted Angola Ordinance 1418–2012, an ordinance establishing licensing requirements and regulations for sexually oriented businesses within the city of Angola, Indiana. The ordinance regulated several aspects of sexually oriented businesses, including a license requirement and hours of operation, and made it “unlawful to establish, operate, or cause to be operated a sexually oriented business in the City of Angola, unless the sexually oriented business is at least 750 feet from every residence.”

Prior to BBL closing on the property, its attorney contacted Zoning Administrator Vivian Likes to verify that the premises met the legal requirements for a sexually oriented business. Ms. Likes responded with a letter that concluded that the Wendell Jacob Avenue site couldn’t be used for a sexually oriented business because a public gathering place was to be built within 1,000 feet of the premises. Despite this, BBL disregarded this letter and closed on the sale of the premises. Plaintiffs BBL, Inc., Alva J. Butler, and Sandra K. Butler argue that Building Commissioner Dean Twitchell orally permitted construction on the premises, and therefore sought a preliminary injunction to enjoin the defendants from enforcing several City of Angola ordinances against BBL’s Showgirl property.
In the first claim made by BBL, BBL argued that the ordinance is a zoning measure because it dictates what type of land use is permitted and where. However, because Angola Ordinance 1418–2012 doesn’t specify the districts where sexually oriented businesses are allowed, the court held that it was not a zoning ordinance under Indiana law. The court thus found that the defendants were entitled to judgment on this matter.

As to BBL’s First Amendment claims, BBL argued the ordinances are unconstitutional as content-based restrictions on speech and expression; the defendant claimed the ordinances are content-neutral restrictions designed to prevent negative secondary effects. The court reasoned that a content-based regulation is one enacted for the purpose of restraining expression on the basis of its content. Angola Ordinance 1418-2012 stated its purpose was “to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City.” To supplement its position, Angola submitted an index providing documentation and copies of the underlying cases and reports with its answer to the complaint: including fifty-four judicial decisions and thirty-eight reports the Angola Common Council relied on and incorporated into the ordinances reasonably link the asserted negative secondary effects—increased crime, drug use and trafficking, sexual assault and exploitation, and decline in property values—to semi-nude dancing establishments. The court found this to be sufficient evidence of negative secondary effects that was relied on by the Common Council and supported its rationale. The court therefore found these ordinances served a substantial state interest.

Despite these findings, because the parties disputed a material fact regarding the sufficiency of the alternative sites the court found summary judgment is inappropriate on this part of the plaintiffs’ First Amendment claim. Accordingly, the court dismissed the plaintiff’s motion for a preliminary injunction as well as both parties’ motions for summary judgment.

BBL, Inc. v. City of Angola, 2014 WL 26093 (N.D. Ind. 1/2/2014)

The opinion can be accessed at: http://bloximages.newyork1.vip.townnews.com/kpcnews.com/content/tncms/assets/v3/editorial/a/bf/abf09c52-74a2-11e3-b183-001a4bcf6878/52c6fe1791f85.pdf.pdf


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