Indiana Court Upholds Adult Bookstore Restrictions

Tod Hunter
INDIANAPOLIS — The Indiana Court of Appeals ruled Dec. 14 that zoning restrictions regulating adult bookstores in southern Indiana's Spencer County do not violate the state Constitution.

The zoning ordinance, which requires sexually themed businesses to be located at least 1,000 feet away from homes, churches or schools, was upheld by a three-judge panel that said the ordinance did not unconstitutionally restrict free speech and noted that owners of 231 Adult Plaza could have built elsewhere.

It is not known whether Adult Plaza will appeal the ruling.

Adult Plaza opened in October 2005 at a former truck stop about 35 miles east of Evansville, Ind. Soon after, Spencer County officials amended their zoning ordinance to restrict adult businesses from within 1,000 feet of a home, church or school.

The county then sought an injunction to halt the plaza's activities. The adult business moved out of its main building, but continued operating in an adjacent convenience store, with a gift shop selling adult novelties and a stage for exotic dancers.

Last March, Spencer Circuit Judge Wayne Roell ruled Adult Plaza had violated the 1,000-foot restriction, and in June, Roell found Adult Plaza in contempt of court and fined it $30,000 after witnesses testified that nude dancing was taking place.

Adult Plaza appealed, arguing that the ordinances violated the 1st Amendment, that the county had not proven any secondary negative effects had occurred, and that the plaza should have been grandfathered in, since the county didn't pass the ordinance until after the business opened. Storeowners wanted Roell's earlier decision granting summary judgment reversed so the case could proceed to trial.

The county argued the 1,000-foot restriction is constitutional and that one of Adult Plaza's buildings is within that distance of an existing residence.

"Plaza has failed to cast direct doubt on the county's rationale for the ordinances," Judge John G. Baker wrote in the 32-page decision. "The evidence shows that there are at least 34 alternative sites in the Spencer County on which [Adult] Plaza could operate a sexually-oriented business and comply with the 1,000-foot restriction. Therefore, because the ordinances are designed to serve a substantial government interest while allowing for reasonable alternative avenues of communication, the dictates of the 1st Amendment are satisfied and [Adult] Plaza's challenge fails."

The owners can appeal to the state Supreme Court, continue operating within the current ordinance keeping adult-inventory limits, or the business could relocate to one of the other Spencer County zones that aren't within the 1,000-foot restriction.

County officials have announced their intention to monitor activities inside Adult Plaza and take further action if they witness any violations of the ordinance.

"We are not there to padlock the doors and say they can't do anything on that site," Spencer County Plan Commission attorney Scott Wetherill said. "If they want to operate a convenience store, gas station or restaurant, they can do that, but it must be in conformity with the zoning ordinance."