Indiana- Lawyers expect a courtroom showdown this fall in the months-long legal battle between New Albany and operators of an adult video store that opened briefly on Main Street in February.
A federal magistrate will hold a telephone conference with lawyers for both sides today to make sure all necessary documents have been filed. A fall hearing date will likely be set at that conference, said Steve Mason, a lawyer for New Albany DVD, and Shane Gibson, the city attorney.
That hearing could lead to U.S. District Judge Sarah Evans Barker deciding whether to let the store open, the lawyers said.
At issue is whether stores like New Albany DVD, which sell or rent products used in the privacy of a home, cause a rise in crime, a drop in property values and other community problems that would give city governments the right to strictly regulate them, Mason said.
He said his best argument is that at least two video stores in New Albany currently sell or rent large numbers of adult videos – without complaints about their impact on the community.
J&J Video at 2736 Charlestown Road had more than 1,000 X-rated videos among several thousand in the store this summer, according to a report filed by professor Daniel Linz, a psychologist and sociologist with the department of law and society at the University of California Santa Barbara.
Adult videos also make up a significant share of the inventory of the Movie Gallery at 1931 Grant Line Road, Linz said.
An associate of Linz’s visited both stores.
Despite the two stores’ inventories of adult videos, Linz said, there were fewer complaints to police about potential criminal behavior around the stores in recent years than around other video stores in town that don’t carry adult videos.
At the Movie Gallery, a reporter counted about 830 adult videos in the back room, where they are kept. Store manager Lena Porter said company rules wouldn’t allow her to comment, and a district manager couldn’t be reached to comment.
Mason said recent decisions in similar First Amendment cases make it clear that New Albany must cite specific evidence showing New Albany DVD would harm the community.
Because the city’s evidence, so far, has been studies and anecdotes from other cities, often involving other types of adult entertainment, Mason said he believes his client will win.
Gibson agreed the battle will be largely over the way New Albany DVD will affect the neighborhood near Main and West Sixth Street.
He questioned the statistics in Linz’s report and said he’s confident an expert for the city, a criminologist who has studied the issue, can explain the impact of adult businesses on other communities and say why it is relevant to New Albany’s case.
“We feel there is some law on our side,” Gibson said.
Alexander Tanford, a law professor at Indiana University in Bloomington, said he believes evidence about the harmful effects of adult businesses on other communities is relevant to New Albany.
Even so, he said, “it seems like the store owner has a pretty good chance” because the 7th U.S. Circuit Court of Appeals, which handles appeals from Indiana, generally takes a strong position in support of First Amendment rights.
The dispute began Feb. 19. Store operators Danny Embry and Keith Johnson opened New Albany DVD that afternoon, knowing the City Council planned that evening to adopt a moratorium on the opening of such businesses, which it did.
Building Commissioner Eddie Hancock ordered the store closed a few hours later, saying it lacked the final inspection and permit.
Mason filed suit against the city a few days later, saying the actions of its officials violated his client’s First Amendment rights to sell adult materials.
Since then, Barker has held one hearing on the case and asked the city and New Albany DVD to complete a formal review of whether the store could open on Main Street under the city’s zoning ordinance.
The city said it couldn’t open there because the store is too close to homes and a church; a zoning ordinance adopted in May limits where adult entertainment businesses can operate.
A separate lawsuit is pending in state court in which the city is asking Special Judge Ceil Blau to declare the city’s zoning ordinance legal and to say New Albany DVD can’t reopen under it.
Blau said in a recent interview that no one has asked her to schedule a hearing or take other action in that case.