City Can Regulate Sex Shops To Control Secondary Effects Without Violating Free Speech

Wednesday, January 31, 2018 2:33 am
Land Use Law Report, Volume 46, Number 2

The U.S. Court of Appeals for the Seventh Circuit has held that an ordinance (Ordinance) promulgated by the City of Gary, Indiana (City) survives constitutional challenges from a group of area sex shops (Plaintiffs).

Facts: Plaintiffs claimed the Ordinance impinged on their First and Fourth Amendment rights, but the appellate court upheld the City’s governmental interest in addressing secondary effects of Plaintiffs’ businesses.

City claims ordinance provisions are content neutral

The Ordinance’s preamble stated the City “desire[d] to minimize and control adverse effects of sexually oriented businesses and thereby protect the health, safety, and welfare of the citizenry … and deter the spread of urban blight.”

The Ordinance applies to sexually-oriented businesses (SOBs), covering all manner of adult bookstores, arcades, novelty stores, theaters and dancing establishments. Provisions include operating hours of 10:00 am to 11:00 pm seven days a week, numerous sanitation requirements, and other obligations with respect to employees such as ensuring that no sexual activity occurs on the premises.

The City requires all SOBs covered by the Ordinance to obtain a license. The Ordinance provides for the immediate issuance of a temporary license upon application by a business, whic[..]