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Tuesday, May 15, 2018

Seventh Circuit Upholds City's Adult Use Ordinance

The Seventh Circuit recently considered a challenge to the adult use provisions of the City of Indianapolis’s zoning ordinance in HH-Indianapolis, LLC, v. Consolidated City of Indianapolis and County of Marion, Indiana, et al.

The plaintiff sought to operate a “Hustler Hollywood” store in the City’s C-3 District.  Under the City’s zoning ordinance, the plaintiff’s store was classified as either an adult bookstore or an adult service establishment. The City’s zoning ordinance prohibited adult uses in the C-3 District.  However, adult bookstores and adult service establishments were permitted by right in three other City commercial zoning districts, including the C-4 district located directly across the street from the proposed store.

After the City denied the plaintiff’s building and sign permit applications because the use was not permitted in the C-3 District, the plaintiff sued, claiming the City’s zoning ordinance violated its First Amendment rights. 

The Seventh Circuit ruled against the plaintiff, finding that the City's zoning regulations did not prohibit adult uses entirely, but merely regulated their location. The Court rejected plaintiff's argument that the City’s ordinance “silenced” their ability to exercise their First Amendment rights at the location of their choosing. The Court noted that the plaintiff had not been silenced, but merely told that it could not operate in one commercial zoning district and must move to another. The Court noted that the plaintiff could operate in three other commercial districts by right. Further, the Court found that the City had a substantial interest in reducing the secondary effects of adult uses by limiting their location. Ultimately, the Court held that “because the ordinance is content-neutral, serves a substantial interest, and allows HH to operate in numerous other commercial districts, HH’s likelihood of success on its First Amendment claim is not better than neglible.”

As the Seventh Circuit confirmed, municipalities have the power to enforce reasonable time, place, and manner restrictions on adult uses. 

Post Authored by Kurt Asprooth, Ancel Glink


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