in last week's Annex Books, Inc. v. City of Indianapolis, a unanimous panel decision written by moderate conservative Judge Frank Easterbrook.
A city ordinance imposed a midnight closing time for all businesses -- including ones with no on-premises video viewing or live sexual displays -- that "devote 25% of more of [their] space or inventory to, or obtain at least 25% of its revenue, from adult [i.e., sufficiently sexually themed] books, magazines, films, and devices." The city argued that such an ordinance was constitutional under the relaxed City of Renton standard of review applicable to "erogenous zoning" ordinances. But all it offered as support was speculation that the ordinance will indeed prevent crime or other secondary effects (such as lower property values), coupled with generalizations from past decisions upholding restrictions on where sexually themed businesses can locate.
The panel concluded that more evidence was necessary to support the ordinance, and the evidence had to be specifically focused on (1) the supposed effects of businesses that had no on-premises video viewing or live sexual displays, and on (2) the supposed benefits of closing time ordinances rather than location restrictions. It then remanded to the trial court "for an evidentiary hearing consistent with this opinion."