Susan orr for www.theindianalawyer.com
Hustler Hollywood, which wants to open a retail store in Castleton, is suing the city of Indianapolis over a zoning denial that the company says is infringing on its constitutional right to operate a business.
Beverly Hills-based Hustler Hollywood, which operates more than 20 stores around the country, is part of Flynt Management Group. Founder Larry Flynt is an well-known proponent of First Amendment free-speech rights.
The company has filed suit against the consolidated City of Indianapolis/Marion County as well as the Metropolitan Board of Zoning Appeals and the Department of Business and Neighborhood Services. The suit was filed late Thursday in U.S. District Court for the Southern District of Indiana in Indianapolis.
Hustler Hollywood wants to open a store at 5505 E. 82nd St., between Allisonville Road and Interstate 465. The area is zoned C-3, a classification in which adult-oriented stores and entertainment businesses are not permitted. City zoning officials last month struck down the company’s latest attempt to open the store.
The retailer’s plan drew stern opposition from neighborhood groups and City-County Councilor Christine Scales — especially after they learned the site is next to Chuck E. Cheese restaurant.
In its suit, Hustler Hollywood says the city is incorrectly classifying the store as an adult business and has denied it the permits that it needs in order to open. The plaintiff also says the city’s actions are depriving it of both its First Amendment right to free expression and its 14th Amendment right to equal protection of law.
Early in 2016, the lawsuit says, Hustler Hollywood talked with city officials so it could understand what it needed to do to avoid being classified as an adult establishment under local zoning laws.
According to the zoning rules, a business is considered an adult bookstore if 25 percent or more of its retail floor space, stock or weekly sales are from adult products, including sexually-oriented media, devices and other items. The rules also define an adult services establishment as one in which “a preponderance of services†involve specified sexual activities or display of specified parts of the body.
In its suit, Hustler Hollywood says it “analyzed its projected inventory, floor space and revenue, determining that it would easily operate below the threshold for triggering a designation of an adult entertainment business.†The plaintiff also noted that it operates stores in other locations that have zoning laws that are more restrictive than the ones in Indianapolis.
In July, the plaintiff signed a 10-year commercial lease for the 5505 E. 82nd St. property. In August, it filed applications to remodel the store’s interior and hang exterior signs at the location.
The sign permit application was denied on the grounds that it would require a variance, and the remodeling permit was denied because the city “needed confirmation of an approved use of the premises before granting such a permit,†the suit says.
In September, the plaintiff submitted information about its projected inventory, floor space and revenue. Initially, the suit said, this information contained projections for Hustler Hollywood’s other store locations, and its online sales, but the plaintiff later submitted new projections for the Indianapolis store only.
The plaintiff filed an appeal with the Metropolitan Board of Zoning Appeals, but the board denied that appeal by a 5-0 vote at its Dec. 6 meeting.
In its lawsuit, the plaintiff says that the inside of the Indianapolis store would not be visible from outside the premises, and that a wall inside the store will separate the general merchandise from the adult-themed merchandise.
Hustler Hollywood also says it will not offer in-store demonstrations, videos or workshops related to its adult merchandise, so it should not be classified as an adult service establishment under city ordinances.
The Indianapolis location has been renovated and is stocked with merchandise, but cannot open for business because of the city’s actions—causing the defendant to suffer financial harm, the suit says.
The suit asks the court to declare the city’s zoning regulations, and their application in this case, to be in violation of the First and 14th amendments. It also asks that the defendants be prohibited from enforcing the “adult†provisions of the zoning regulations against the plaintiff.
The plaintiff is also asking for monetary damages for lost profits, loss of goodwill, remodeling and maintenance costs, and “deprivation of constitutional rights.†The suit does not specify a dollar amount for these damages.
Attorney Donnie Morgan, the city’s chief litigation counsel, said Friday morning that the city has not yet been served with a copy of the lawsuit.
Morgan declined to comment on the case in general, saying that the city’s policy is to refrain from talking about pending litigation.
