Monday, May 7, 2018
The Seventh Circuit ruled today that a retailer was not likely to succeed on its First Amendment challenge to Indianapolis's adult-store zoning regulations.
The case, HH-Indianapolis v. Indianapolis, arose when the plaintiff sought to open a retail establishment called "Hustler Hollywood" in Indianapolis. The corporation sought advice from city officials in order to avoid the "adult" designation under the city's changing zoning rules, and, in reliance on that advice, entered into a ten-year lease at a particular location. But when the corporation applied for a structural permit to remodel the property, the city determined that the retailer was either an adult bookstore or an adult service establishment--either way, not permitted in the zone where it was located (but permitted in other areas of the city, including a zone right across the street). The corporation declined to challenge the designation through the state courts and instead brought a First Amendment challenge in federal court.
The Seventh Circuit ruled that it was unlikely to succeed (and thus denied its motion for a preliminary injunction). The court said that the case fell squarely within the Supreme Court's "erogenous zoning" line: "There is simply 'no First Amendment objection' when the City exercises its zoning power to reduce the secondary effects of adult businesses, and HH has alternative avenues of communication."
The court said that the plaintiff's claim really amounted to a challenge to its designation as an "adult" retailer, and under state law belonged in state court.