Indiana Supreme Court upholds Spencer County sexually-oriented business regulations
On Dec. 13, 2007, the Indiana Court of Appeals affirmed a trial court judgment against Plaza Group Properties, LLC (appellant) finding that Spencer County’s sexually-oriented business ordinances did not “unconstitutionally burden protected speech.” Plaza also sought “lawful nonconforming use status” on the property in question, since the plot had been purchased and built upon prior to the adoption by the Spencer County Board of Commissioners of ordinance 2005-10. The Court found that Plaza was not entitled to nonconforming use status because Plaza had spent $5,000 renovating the property without a building permit.
Plaza acquired the property on Oct. 21, 2005 and began renovations without a permit from the county. On Nov. 16, 2005 Spencer County “filed a complaint for injunction.” A temporary restraining order was issued by the trial court. In the meantime, the county held a public hearing on Nov. 10th, 2005 and adopted 2005-10 on Nov. 28th. The ordinance contained a 1,000-foot restriction, regulated hours-of-operation, and prohibited nudity (as defined in Indiana code 35-45-4-1). A second ordinance, 2005-11, was adopted on Dec. 28th requiring licensing for the operation of a sexually-oriented business.
On Jan. 4th, 2006 the county amended their request for permanent injunction, alleging that Plaza was in violation of ordinances 2005-10 and 2005-11. On Jan. 20th, Plaza entered a counterclaim “alleging that ordinances 2005-10 and 2005-11 are unconstitutional on their face and as applied pursuant to the First Amendment to the United States Constitution and ‘related provisions of the Indiana Constitution.’” The trial court entered “partial summary judgment in the county’s favor on March 9, 2006” affirming the constitutionality of the ordinances, and Plaza appealed.
The Court of Appeals dealt with two basic issues: the question of “lawful nonconforming use” and the constitutionality of Spencer County’s ordinances. Under Indiana Supreme Court precedents, “a nonconforming use may not be terminated by a new zoning enactment.” But, since Plaza had spent more than $5,000 renovating their property without a permit (in violation of an already-existing ordinance: 2005-2) the Court of Appeals found that they were not entitled to lawful nonconforming use status and were subject to the requirements of 2005-10 and 2005-11.
In regard to the constitutionality of the latter ordinances, the Court cited the 7th Circuit Court of Appeal’s summary of the “current state of the law” in R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 407-09 (7th Cir. 2004) to outline its approach. Following the 7th Circuit then, the Court set out to decide whether a “substantial government interest” was evident in Spencer County’s ordinance and whether the “breadth of [those] ordinances” was constitutional.
Objecting to the evidence of “government interest” provided by Spencer County, Plaza relied on a “rural/urban evidence distinction.” Such a distinction had previously allowed appellate courts, citing the absence of studies concerning rural areas, to reverse county ordinances regulating sexually-oriented businesses(see LLEH, Inc. v. Wichita County). But the Indiana Court of Appeals found that Plaza had provided no evidence “casting direct doubt” (required under Alameda) to counter the county’s “secondary effects” claims, and therefore the “burden does not shift to the County to supplement the record with evidence renewing support for its substantial government interest.”
In regard to the “time, place, and manner” constitutionality of the ordinances, the Court pointed out that the ordinances allowed “reasonable alternative avenues of communication” (”The evidence shows that there are at least thirty-four alternative sites in the Spencer County on which Plaza could operate a sexually oriented business and comply with the 1,000-foot restriction.”), and therefore “satisfied the dictates of the First Amendment.”
Related: Adult plaza under microscope (Evansville Courier & Press)