Hustler Hollywood's Appeal Decided at 7th Circuit

INDIANAPOLIS — A federal appeals court yesterday upheld Indianapolis’ ordinance that prohibits adult entertainment businesses from operating in certain zoning districts, handing a defeat to Hustler Hollywood, which sought to open a store in the city.

Hustler Hollywood last year filed a federal lawsuit seeking declaratory and injunctive relief against the city of Indianapolis and Marion County, as well as the Metropolitan Board of Zoning Appeals and other agencies after they refused to allow its new store to open in 2016 after it had signed a 10-year lease.

The retailer's plan drew swift and stern opposition from neighborhood groups and Indianapolis’ city attorney, Christine Scales, after they learned that Hustler Hollywood’s planned location was next to a Chuck E. Cheese restaurant. The location where Hustler Hollywood wanted to establish the store was zoned C-3, a classification in which adult-oriented stores and entertainment businesses are not permitted.  

In its suit, Hustler Hollywood said it “analyzed its projected inventory, floor space and revenue, determining that it would easily operate below the threshold for triggering a designation of an adult entertainment business.” That threshold pertained to 25 percent or more of its retail floor space, stock or weekly sales from adult products.

Hustler Hollywood said that Indianapolis incorrectly classified the store as an adult business and denied it the permits that it needed in order to open.

The retailer said the city’s actions were depriving it of both its 1st Amendment right to free expression and its 14th Amendment right to equal protection of law.

But a lower court disagreed with Hustler Hollywood and said that the chain was unlikely to succeed on the merits of its claims.

On Monday, the 7th U.S. Circuit Court of Appeals agreed with the lower court ruling, holding the city’s application of the ordinance has resulted only in an incidental restriction on Hustler Hollywood’s speech in a particular location.

“Hustler Hollywood has not been deprived of their First Amendment right to operate in Indianapolis,” the 7th Circuit  wrote. “The city has simply told Hustler Hollywood that it cannot operate in a C-3 district, while also providing numerous other avenues for speech in C-4, C-5 and C-7 districts, including a C-4 district directly across the street.”

Further, Hustler Hollywood “presented no evidence in the district court or on appeal that officials from [city and county agencies] displayed any bias or censorial intent in their determinations. Furthermore, the city was under no constitutional obligation to inspect the property or allow Hustler Hollywood to open conditionally before making its determination,” the 7th Circuit wrote.

“Ultimately, the question of whether the city’s determination rested on a sufficient evidentiary basis is properly suited for state court review. That evidentiary issue does not present a 1st Amendment violation, nor does it justify the issuance of a preliminary injunction.”

Check out the ruling here.