U.S. Supreme Court Rejects New Albany DVD Case

Rhett Pardon
WASHINGTON — The U.S. Supreme Court has declined to hear New Albany, Ind.'s appeal in its six-year fight to close New Albany DVD, a business that is now known as Cleopatra's.

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 New Albany DVD to operate an adult bookstore.

That same day, council members also placed a six-month moratorium on new adult businesses, later amending it to outlaw sexually oriented businesses from operating within 1,000 feet of any church or residential area.

New Albany DVD, which claimed the change in zoning violated the 1st Amendment because it tailored the regulations based on what the store sells, is located within 175 feet of a church and 115 feet from a proposed residential building.

A 2005 federal court injunction allowed the store to open despite the new ordinance, and the city of New Albany appealed that decision.

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.

But in an earlier ruling last year, the 7th U.S. Circuit Court of Appeals said that the city of New Albany needs some evidence that secondary effects around the establishment are a serious problem.

In the case, the 7th Circuit said, “the volume of complaints exceeds the number of genuine problems.”

“New Albany has not supplied evidence that ‘fairly supports’ the idea that adult bookstores located near churches or residences attract thieves who then steal from the local denizens as well as the stores’ customers,” the court said. “We don’t say that the city will be unable to produce this evidence, but the lack of good evidence to this effect in the record — coupled with evidence implying that take-home adult stores do not have adverse secondary effects — is enough to require an evidentiary hearing.”

New Albany Mayor Doug England told Tribune Media that he doesn't think the city should put any more money into a losing effort following Monday's announcement by the high court.

"You can't keep spending good money after bad if the federal government and the court system's not going to cooperate with us because we're using taxpayers money to fight this," he said.

But City Attorney Shane Gibson said the decision to stay out of New Albany’s legal battle with an adult book store doesn’t mean the case is closed.

“Obviously, we’re disappointed that the Supreme Court didn’t take a good look at [the case] and the potential precedent it could set for communities such as ours,” Gibson said. "[But] the issue that we wanted hopefully cleaned up and cleared up that probably would have resolved the case has not been cleaned up or cleared up.”