Indiana: Judge Upholds Adult Zoning, Orders Adult Plaza Bookstore to Close

Reporting from Dale, Indiana, AP says that Circuit Judge Wayne Roell has upheld Spencer County’s adult-use zoning. Adult businesses may not operate within 1,000 feet of churches, schools and residences. Cincinnati attorney H. Louis Sirkin, considered one of the most experienced obscenity trial attorneys in the country, argued the county’s ordinance was unconstitutional. Judge Roell disagreed:

“Adult businesses have not been denied a reasonable opportunity to open and operate,” Roell said in his ruling Friday. “The
regulations restricting operations within 1,000 feet of a residence are valid.”

Adult Plaza opened in November 2005 about 35 miles northeast of Evansville, IN next to Interstate 64. “The week before, Spencer County passed the ordinance designed to stop the bookstore… Officials in adjacent Dubois County also opposed the bookstore. In May, more than 300 people attended a rally in Huntingburg that raised money to help pay legal fees to fight the business.”

We appreciate the blog Keep Johns Creek Safe for bringing this welcome news to our attention, and for pointing to additional information on The Indiana Law Blog:

March 13, 2007
While Spencer County officials argued the business would cause increased crime and said it opened without filing proper permits, Dubois County officials helped coordinate a community rally against the business…

July 9, 2006
Increasingly, small, rural counties that border major interstates are finding themselves home to adult-oriented businesses.

Spencer County officials hired a Tennessee attorney to advise them on how to shut down the Love Boutique.

Scott Bergthold of Chattanooga has built a national reputation for helping small communities keep out adult entertainment businesses. He told them the local case is part of a “very large trend” that’s been going on in rural counties around the country for a good part of the past decade.

“They (rural officials) never thought they’d have the problem and now the wolf is at the door,” he said. “But I have worked for a lot of counties like Spencer County, and they all share the commonality of bordering an interstate…”

The county also adopted a new zoning ordinance that Bergthold has said he is confident will hold up under court challenge because it was carefully modeled after others previously upheld in similar cases.

The zoning ordinance bars adult businesses from operating within 1,000 feet of churches, schools and residences, based on the idea that the businesses might bring negatively affect [sic].

The consequences, such as increases in certain types of crime, are termed “negative secondary effects,” and attorneys say they have been proven in other cases and upheld by courts…

Fighting the adult entertainment industry in court can be costly for small counties.

To date, Spencer County has appropriated $70,000 for the case, said Sara Arnold, county auditor.

Communities are advised to plan ahead and implement adult-use zoning before adult enterprises arrive on the scene. However, it is still worthwhile and effective to implement this zoning even after a community learns an adult enterprise is interested in it.

See also:

USA Today: “‘Porn wars’ flaring in the heartland”
Scott Bergthold, a Chattanooga, Tenn., lawyer who works with local governments on adult-business cases, told the newspaper that one key for small towns and rural counties who want to control the shops is to draft solid, court-tested ordinances before such a store tries to move in…

“They really prey on rural communities that don’t have the resources to fight them,” Farrow said.

State Land-Use Planner: “Once the ‘use’ is located in your community, it’s very difficult to get rid of them”
“If communities take time now to look at their zoning regulations, you can really lessen the impact dramatically so (an adult-entertainment business) doesn’t pop up next to a high school, church or day-care center, to use those as examples,” he said.

Recommended Book: Local Regulation of Adult Businesses (2007 edition)
By Jules B. Gerard and Scott D. Bergthold. From the description:

  • Provides detailed, up-to-date case law
  • Focuses on the four main regulatory devices of obscenity, zoning, licensing, and nuisance control
  • Examines recent United States Supreme Court rulings
  • Discusses constitutional limitations and regulations governing adult businesses

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.