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Thursday, December 10, 2015

Buffer Zone Around Adult Entertainment Business Found Permissible

The Seventh Circuit recently addressed the validity of an ordinance placing a 750-foot buffer zone around a proposed adult entertainment business and requiring a permit.  In BBL Inc. v. City of Angola, plaintiffs purchased a restaurant in the City of Angola, Indiana, with the intention of converting the restaurant into an adult-entertainment venue with nude dancing.  A few days after plaintiffs made the purchase, the City amended its zoning ordinances to prohibit this use of the property, imposing a 750-foot residence buffer zone requirement.  Plaintiffs sued the City alleging violations of their First Amendment rights.  Specifically, plaintiffs argued that the licensing and zoning amendments violated their right to expressive conduct and that a permit requirement was an impermissible prior restraint on speech. 

The federal district court denied plaintiff’s motion for a preliminary injunction in an omnibus order.  The district court also granted the City’s motion for judgment on the pleadings for certain parts. While the judge granted this, he failed to fully analyze the First Amendment.  Plaintiffs appealed to the Seventh Circuit.

The Seventh Circuit affirmed the denial of the preliminary injunction, noting that its jurisdiction was limited to that issue.   With regard to the plaintiff’s claim that the licensing and zoning amendments violated their right to expressive conduct, the Seventh Circuit noted that nude dancing is subject to intermediate scrutiny as a content-neutral regulation. The Seventh Circuit looked to whether the challenged regulations were justified without reference to the content of the regulated speech and whether the adverse secondary effects relied on by the municipality have a basis in reality.   The court concluded that the plaintiffs First Amendment rights were not violated as the ordinances were designed to reduce the negative secondary effects of adult entertainment establishments.  Further, several other land parcels were available where the adult entertainment business could operate.  The Seventh Circuit also found the permit requirement to be moot as  the requirement had been later removed in the zoning amendments.  

Post Authored by Erin Baker, Ancel Glink

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