Court Doesn’t Buy New Albany’s Porn Litter, Theft Complaints

NEW ALBANY, Ind. — In a second federal appeals court ruling on an Indiana zoning ordinance in a week, a panel has decided that New Albany DVD can continue operating as an adult bookstore.

The 7th U.S. Circuit Court of Appeals said that the city of New Albany’s zoning restrictions for adult stores are too vague and that city leaders must provide stronger evidence that either the store would produce an inordinate amount of pornographic litter or would encourage crime, particularly theft.

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

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.

The 7th Circuit, based in Chicago, said that the city of New Albany needs some evidence that thefts are a serious problem.

“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.”

The 7th Circuit, also skeptical of the “litter” justification, said that New Albany should have paid closer attention to the lawful objective of zoning.

“For the [litter] justification to work, it will be necessary to establish (a) how much sex-oriented litter an adult bookstore generates, (b) who is likely to see that litter in the parts of New Albany where adult bookstores are allowed to operate; and (c) how much adult litter will remain in New Albany’s central business area (generated by adult corners of other businesses) if plaintiff is exiled to an industrial district or highway,” the court said. “Otherwise evidence about litter cannot support the sort of regulation that New Albany has enacted.”

But the court said that the city could go back to the drawing board and rework the ordinance.

“New Albany may be able to resuscitate its anti-litter rationale by showing that the zoning law moves litter to where children (and sensitive pedontists) won’t see it,” said the court, noting that one of the city’s witnesses was a local pedontist.

The court ordered a new hearing, but allowed New Albany DVD to stay open pending the outcome.

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

TeamSkeet Releases 1st Installment of 'Ripe for the Taking'

TeamSkeet has released the first installment of its latest feature, "Ripe for the Taking," starring TeamSkeet March AllStar Scarlett Alexis.

LELO Launches 'Masturbitter' Craft Beer to Promote Male Sex Talk

LELO has partnered with Great Beyond Brewing Company to launch Masturbitter, a craft beer, to encourage men to discuss sex.

Pineapple Support Appoints Kasey Kei as Brand Ambassador

Pineapple Support has appointed veteran performer and content creator Kasey Kei as its latest brand ambassador.

Nebraska AV Bill Moves Forward Despite Privacy, Free Speech Concerns

Nebraska’s unicameral Legislature has given first-round approval to LB 1092, the state’s version of the age verification bills being sponsored around the country by anti-porn religious conservative activists.

Eva Maxim, Katrina Colt Headline 'Cumming to LA' From Cherry Kiss

Eva Maxim and Katrina Colt star with Vince Karter in 2021 XBIZ Europas Female Performer of the Year Cherry Kiss' "Cumming to L.A.," from Evil Angel.

Performers in Meta Blacklisting Lawsuit Seek to Preserve Antitrust Claims

Adult Performance Artists Guild board officers Alana Evans, Kelly Pierce and Ruby have informed a California court that, although they want to drop their lawsuit claiming that Meta conspired with OnlyFans to blacklist rival premium fan platforms’ talent, they may still pursue antitrust claims in the future.

Xgen Now Shipping ZOLO's 'Stroke Off' Collection

Xgen Products is now shipping the Stroke Off collection of 11 handheld strokers and four masturbators modeled after lifelike body parts.

Nobü Unveils 'Gyrä' Vibrating Grinding Pad

Nobü has introduced the new Gyrä vibrating grinding pad.

Orion Introduces New 3-Motor Vibrator From 'Sweet Smile' Line

Orion Wholesale has debuted the new three-motor RC G- & P-Spot Vibrator from its Sweet Smile line.

Skylar Snow Headlines 'Infidelity 4' From Sweet Sinner

Skylar Snow toplines "Infidelity 4," the latest release from Mile High Media studio brand Sweet Sinner.

Show More