minusonebit

This has been all over AP today... so the question is... are we really winning the war or just fighting battles that delay the enivitable result?

Battles over adult businesses are often uphill fights
01:46 PM EDT on Tuesday, September 5, 2006
By GRACE SCHNEIDER / The Courier-Journal

The protesters are posted outside the Lion?s Den around the clock, seven days a week. ?No Porn in Uniontown,? reads one sign, condemning the adult store?s selling of sex toys and sexually explicit videos and DVDs. ?God is watching you,? proclaims another.

Since the business opened beside Interstate 65 in Indiana?s Jackson County a year ago, the county government and a group of outraged residents have waged an aggressive battle to shut it down. ?We will be here till that is gone,? said former steelworker Douglas Hoskins, seated in a lawn chair beside the Lion?s Den driveway one recent evening with retired farmer Bige Doyle.

Legal experts who track the decades-old war between sexually oriented businesses and local governments that try to keep them out say the battle being waged in Uniontown is becoming increasingly common. That?s because the multibillion-dollar sex industry has branched into the heartland, often along interstates, and is no longer limited to rundown retail districts in major cities. In the past three years, local governments have waged court battles with such stores in five south-central Kentucky and Southern Indiana communities.

Adult businesses have a constitutionally protected right to operate, despite attempts to shut them down, said Michelle Freridge, executive director of the Free Speech Coalition, a California-based trade association to the adult-entertainment industry.

Richard Bryant, a Kansas City lawyer who represents adult businesses, said the industry has a history of being attacked by local governments, but the bottom line is that they wouldn?t open where they do without a ready market for their products.

?Adult businesses operate like any other business,? Bryant said. ?They don?t go places where they don?t make money.?

Although governments can?t impose a ban on sexually oriented businesses, U.S. Supreme Court rulings have supported their authority to regulate such businesses by establishing where the stores can operate, said Eric Damian Kelly, a lawyer and professor of urban planning at Ball State University.

Kelly, co-author of a guide for governments to regulate adult businesses, said many communities enact zoning ordinances to prohibit adult businesses from operating within 1,000 feet of churches, schools and homes. Such restrictions are based on assertions that the businesses cause ?adverse secondary effects,? such as increased crime and lower property values, he said.

But ?a lot of communities don?t plan ahead, and they get in trouble,? Kelly said, because they lack land-use ordinances or business regulations to withstand a legal challenge.

The adult businesses clearly understand the playing field, said Jackson County (Ind.) Attorney Rodney Farrow.

?They really prey on rural communities that don?t have the resources to fight them,? Farrow said.

J. Michael Murray and Steven D. Shafron of Cleveland, lawyers for the Uniontown Lion?s Den, could not be reached for comment. Stanley Robison, a New Albany lawyer who serves as local counsel for the business, declined to comment.

In Jackson, commissioners learned from a few residents in August 2005 that there was more than a truck stop under construction at Exit 41, as Farrow said local officials were told. The county had some zoning orders in place, but the commissioners passed an ordinance three days before the Lion?s Den opened requiring adult businesses to obtain a permit and adhere to other restrictions. The store opened without the permit, and the commissioners filed a lawsuit in Jackson County Superior Court accusing the company of violating the ordinance.

At a hearing last September, Murray argued that the measure amounted to illegal zoning and a blatant attempt to suppress free speech. Farrow and others said it could be months before the case is resolved.

In New Albany, an adult store called New Albany DVD took the city to federal court in early 2004 after local officials tried to keep it from opening. The city had cited zoning and business-code violations.

The city lost a first round when U.S. District Judge Sarah Evans Barker ruled that the store had ?substantially? complied with city regulations. The city?s appeal is pending before the 7th U.S. Circuit Court of Appeals, and its legal fees have topped $120,000, according to city records.

Scott Bergthold, a Chattanooga, Tenn., lawyer who works with local governments on adult-business cases, said the lesson for small towns and rural counties is to draft solid, court-tested ordinances before such a store tries to move in. He said adult businesses go where they can make money and operate with few restrictions, so ?it really pays to be proactive.?

Outside the Lion?s Den in Uniontown, Hoskins and Doyle said they believe the courts are not the only way to fight such stores. The protesters snap pictures of vehicles entering the parking lot and contact companies whose names they see on pickups and semis. They also quote the Bible to people who stop to argue, Hoskins said.

The men believe they?ve deterred hundreds of would-be customers and hope their efforts force the store to fold.

Pointing at the store, Hoskins said, ?I don?t want this to happen to anybody else, anywhere else.?

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