An attorney representing a Noblesville business that sells adult baby items such as diapers and stuffed animals plans to take legal action after the city’s Board of Zoning Appeals affirmed a decision that it is operating as a sex shop.
Silvia Miller, an attorney with Allen Wellman McNew Harvey law firm in Greenfield, appeared before the five-member BZA board during its Aug. 1 meeting to challenge the city’s determination that My Inner Baby is a sex shop operating within the I-1 (Light Industrial) zoning district. The business, located at 15480 Herriman Boulevard, sells adult diapers, pacifiers, onesies, stuffed animals and other items.
Denise Aschleman, senior planner with the city, told BZA board members that the appeal they were considering stemmed from concerns by constituents that were brought to the attention of a Noblesville Common Council member. City legal counsel shared information June 15, 2021, with the city’s planning and development department, which eventually went to the business for a site inspection, Aschleman said.
Officials also looked at marketing material presented by My Inner Baby to the general public and members of internet and social media sites as part of its review, according to the city.
Caleb Gutshall, director of the planning department, issued a letter April 26 of this year to My Inner Baby after a determination was made that it was operating as a sex shop in the I-1 (Light Industrial) zoning district, which isn’t permitted. However, Miller contended that the city’s interpretation of a sex shop and labeling My Inner Baby as one wasn’t accurate.
“There are no sex toys,” Miller told the board.
Miller also pointed out that none of the items sold at the business were marketed for sexual use, arguing that the city had no proof that items were used in such a manner. That was disputed by Beth Copeland, an attorney with Taft Stettinius & Hollister law firm who represented the city.
Copeland told the BZA board that in order to be considered a sex shop in Noblesville, an establishment would need to offer goods for sale or rent and that more than 5 percent of its stock consists of sexually oriented toys or novelties or that more than 5 percent of its gross public floor area is devoted to the display of such items.
Copeland also said My Inner Baby had been targeting products for groups to look at on social media platforms such as Instagram with certain hashtags. She added that the business, which describes it as being a medical supply company, was marketing itself as ABDL – an acronym for Adult Baby/Diaper Lovers – on social media sites.
“It’s not what it claims to be,” Copeland said. “It does not have to be pornographic to be a sex shop. Noblesville is saying that this shop cannot operate (in the current zoning district).”
One member of the public spoke in favor of the business, while two other individuals voiced support for the city. The BZA board unanimously voted 5-0 to affirm Gutshall’s determination of My Inner Baby being a sex shop.
BZA board member Lauren Wahl said she wasn’t against the business being in operation but questioned whether the current location was the right fit. Fellow board member Mike Field, who serves as chairman of the BZA board, said he was “conflicted” in making a decision on the matter, but decided to side with the city’s planning staff since they are considered professionals in their field.
“I trust their judgment,” Field said.
Miller, who appeared with the owners of My Inner Baby, Sabine Kissee and Ryan Polokoff, spoke to the media following the board’s decision. She said she plans to file an appeal in Hamilton County court while seeking an injunction to stop enforcement until the appeal is completed. Miller said she didn’t know how long an appeal would take but noted that her clients have no intention of relocating in the meantime.
Miller also pointed out that who My Inner Baby markets its products to doesn’t fit the definition of a sex shop, adding that products sold at the business aren’t being marketed for sexual use. Still, she expressed confidence that the decision would be overturned once the case makes its way to court.
“I believe they have the law on their side and that the court will rule that way,” Miller said.
Polokoff, who started My Inner Baby as a business in August 2020, admitted he was disappointed with the board’s decision, but said “it was to be expected.”
“There’s a lot of politics at play and politics are not the law,” he said. “We’re not going to be bullied.”
The city noted in its staff report that a denial of the appeal by the BZA board “does not completely prevent the applicant from further pursuing the use at this location.”
“The applicant has the right to request a land use variance or rezoning of the property,” according to the staff report. “The land use variance and rezoning procedures also would give the neighbors that are adjacent to the property the opportunity to comment on the land use.”
However, city spokeswoman Emily Gaylord said the BZA’s decision affirming the director’s determination means that My Inner Baby is required to cease operations until all required permits or variances are acquired. She added that BZA board members will approve and sign findings of fact regarding the board’s decision at its September meeting, a step she described as completing the record.