The law written for a category of one

1999 — 2004

The ordinance: In 1999 the Mishawaka Common Council, setting out against what it deemed the harmful secondary effects of sexually oriented businesses, approved Ordinance No. 44-15, codified as Chapter 125 of the city code — a licensing and regulatory scheme for every sexually oriented business in the city. The definitions the federal court later reproduced from § 125.02 describe a bookstore, novelty store, or video store by the substantial-portion test — a significant or substantial share of stock, revenue, floor space, or advertising given to materials characterised by nudity or by "specified sexual activities." The scheme's other sections look past the one business the city had: § 125.14's booth rules speak of "a sexually oriented business, other than a sexually oriented motel/hotel," and § 125.19 regulates live entertainment — on which the Seventh Circuit's opinion carries the operative footnote: "No business in Mishawaka currently offers adult-oriented live entertainment." The council had written rules for kinds of adult business that were not in Mishawaka, in a chapter whose whole actual population was a single shop.

The one business: Pleasureland Museum, at 114 West Mishawaka Avenue, had been operated for twenty years by Ed and Shirlee Balanow when the ordinance passed: adult materials sold and rented, and private viewing booths for adult films — not a bar, serving no alcohol, offering no live entertainment. The South Bend Tribune, reporting the district court's judgment in 2000, called it "the only known business in Mishawaka that would fall into the category of being a sexually oriented business." The store sued under the federal civil-rights statute, and Judge Allen Sharp of the Northern District of Indiana upheld the ordinance in its entirety. On May 1, 2002, the Seventh Circuit decided Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988: the definitions and the open-booth restrictions stood, as did the signage font-and-colour rule and the painting restriction; the rule limiting a business's sign to its legal name alone was struck down, as were several of the licence-disclosure requirements; the ordinance's ban on the distribution of sexual devices, § 125.22, and its judicial-review provision were sent back to the district court for the consideration they had not received; and the ordinance's severability clause saved everything else. The case is told as a business and litigation record in the Bars & Nightclubs section; it is carried here at the size this section needs — the whole of Mishawaka's law on the adult category, litigated end to end, without a club anywhere in it.

The afterlife: The ordinance outgrew the city in print. City officials and a citizens' group were already saying in 2000 that it could serve as a model for other communities, South Bend included, and a Tribune editorial of 2004 — pressing South Bend to finish its own case — put the claim at full size: the Mishawaka ordinance, "almost identical to the South Bend ordinance, was upheld in federal court, and by the 7th Circuit Court of Appeals. It is now a model for hundreds of communities across the country." A licensing code written for one bookstore on Mishawaka Avenue became the region's export. No second business, and no club, ever applied to be licensed under it in the record reached.

Sources:

1. Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir., May 1, 2002), read first-hand — the twenty years of operation, Ordinance No. 44-15 and Chapter 125 (§ 125.02 definitions; § 125.14 booths, with its "sexually oriented motel/hotel"; § 125.16 signage; § 125.19 live entertainment, with footnote 2; § 125.21 fines; § 125.22 devices; § 125.23 severability), the district court's judgment for the city (No. 99 C 457, N.D. Ind.), and the affirmance, reversal, and remand in part.
2. South Bend Tribune (2000), as indexed in the newspaper's ProQuest archive — Judge Sharp's ruling against the bookstore at 114 W. Mishawaka Ave.; "the only known business in Mishawaka that would fall into the category"; the model talk, from officials and a citizens group.
3. South Bend Tribune editorial (2004), as indexed in the newspaper's ProQuest archive — the ordinance "almost identical to the South Bend ordinance… now a model for hundreds of communities across the country."
4. Bars & Nightclubs section of this history — the Pleasureland business record and the case at business size; cross-referenced here, not retold.