A special Bartholomew Circuit Court judge has ordered The Lion’s Den adult book at Uniontown to close. But an appeal of Judge Stephen R. Heimann’s ruling is expected, court observers noted.
“Although I’m excited Judge Heimann ruled in our favor, I fully expect they will appeal it,” said Susan Bevers, attorney for Jackson County.
The Ohio-based owners of the store at Exit 41 at I-65 & State Road 250, have 30 days in which to file a notice of plans to file an appeal of the ruling which Heimann submitted this past Friday in Jackson Superior Court I in Seymour.
Although Heimann’s ruling states the business does not exist in the eyes of the county’s ordinances—which were at the heart of the lawsuit—the store likely will remain open if an appeal is filed.
The order focused on four areas:
•Whether ordinances 2005-5 and 2005-6 are zoning or business licensing ordinances.
Heimann said the ordinances don’t reach the point of telling businesses what type of land can be used and agreed they are licensing rather than zoning regulations.
•Whether the store would be grandfathered under the ordinances. Heimann ruled it would not, agreeing the ordinance was adopted before the store opened. Commissioners passed Ordinance 2005-5 Aug. 16, 2005, and The Lion’s Den opened three days later.
•Whether the ordinances are constitutional. Heimann ruled they pass constitutional muster.
Heimann ruled the county’s ordinances are “content neutral” and are “related to undesirable secondary effects and not seeking to ban the content of adult businesses”—that protecting the health, safety and welfare of citizens are the county’s goals—and that there are alternative locations to operate sexually oriented businesses.
•And whether The Lion’s Den counterclaim should keep the county from requesting a summary judgment. Heimann ruled it did not and blocked the store from operating in Uniontown. However, the order does not include a timeline for closing.
The store would be in violation of the order once its attorneys receive notice of the ruling. An appeal could delay enforcement of the order to close, however.
While happy with the judge’s ruling, County attorney Susan Bevers has a concern what the ruling and anticipated appeal will cost the county to the Indiana Court of Appeals.
The Indiana Court of Appeals may not accept the case, Bevers said, indicating that in Heimann’s order he cited an Indiana Supreme Court ruling in the City of Carmel as a precedence for his recent ruling.
In 2007 leaders of the Jackson County Watchdog Group, a group of area citizens protesting the adult book store since it opened, asked the commissioners and county council in April 2007 to allow a county fund to be established where donated money could be used to pursue a law suit to close the store.
Between May 2007 and the end of December 2009, a little over $18,025 was raised by the group and expended for the law suit.
From June 25 to July 19 of this year, $33,343 was paid out of the county general fund to pursue the suit against the Lions Den.
“This is the county’s law suit, not the Watchdog group,” Bevers said. “The county is responsible for paying attorney fees.”
Heimann’s ruling came 45 days after a hearing in Jackson Superior Court I on the county’s request for summary judgment.
Should there be an appeal, “the cost of paying for an appeal is completely the county’s responsibility,” said Bevers.
