Hustler Hollywood loses appeal in effort to locate near Chuck E. Cheese's in Castleton

A federal appeals court has ruled that Hustler Hollywood's First Amendment rights were not violated when Indianapolis zoning laws prevented it from operating near a Chuck E. Cheese's restaurant in Castleton.

The 7th U.S. Circuit Court of Appeals said May 7 that Hustler Hollywood's "speech has not been silenced or suppressed" and it "has only been told that it cannot operate in a particular commercial district and must move elsewhere."

Chuck E. Cheese's is a restaurant and entertainment chain catering to young children.

Hustler Hollywood describes itself as a "sophisticated retail experience for the sexually curious to explore new forms of eroticism," according to the website for its chain of stores. It is part of Larry Flynt's brand that includes pornography and strip clubs.

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In a complaint filed in federal court in Indianapolis in January 2017, Hustler Hollywood said its business model is to restrict inventory and the layout of its stores in a way that avoids classification as an "adult" business by zoning authorities.

It said it signed a 10-year lease at 5505 E. 82nd Street after consulting with city officials.

But a city board of zoning appeals voted 5-0 to prevent Hustler Hollywood from opening at the location.

A city ordinance defines an "adult entertainment business" in part as an operation with more than 25 percent of its space used for display of adult products. Hustler Hollywood said it would comply with the rule, but the zoning appeals board found the business's evidence deceiving.

More than 45 percent of inventory was described as either "general merchandise" or "toys," not adult products. "Sensual care" products, including "marital aids" were not listed as adult products. A community group opposing the store used photos from other Hustler Hollywood locations showing adult products "visibly displayed throughout the store."

Hustler Hollywood was seeking a preliminary injunction on the First Amendment issue, which had been denied by U.S. District Court Judge Sarah Evans Barker. The company contended that city zoning ordinances were illegally vague and overly broad.

The federal appeals court ruling, written by judge William J. Bauer, contained esoteric legal concepts as well as the names of sex toys, organs and acts.

It said the city zoning board was within its rights because the regulations "are not aimed at the content of the adult businesses, but rather the harmful and undesirable 'secondary effects' of such businesses on the surrounding community."

Hustler Hollywood, the court said, has only a "restriction on ... speech in a particular location."

"Hustler Hollywood has not been deprived of their First Amendment right to operate in Indianapolis."

Donald E. Morgan, chief litigation counsel for the city, declined comment, citing pending litigation.

Erin E. McCampbell, an attorney for Hustler Hollywood, did not return a message Friday requesting comment.

Contact Mark Alesia at (317) 444-6311. Follow him on Twitter: @markalesia.