Volume 74, Number 50 | April 20 - 26 , 2005

City wins round in court on closing holes in porn law

By Albert Amateau

In a decision that raised some hope among Village and Chelsea neighborhood activists, with a few skeptics among them, an appeals court on April 12 reaffirmed the city’s right to close the loopholes in zoning that regulates how and where porn shops and topless bars may operate.

But the plaintiffs who challenged the city’s 2001 tightening of the adult-use zoning won a temporary stay from the Appellate Division for a chance to take the case on to the Court of Appeals in Albany. Lawyers for the shops and for the city have until April 28 to argue for and against the Appellate Division allowing the case to move on to the highest court in the state.

“I am glad that the Appellate Court’s ruling brings us one step closer to having clearly defined adult-use provisions to zoning,” said City Councilmember Christine Quinn. “New Yorkers have had to wait in limbo long enough to find out if there will be relief to residential neighborhoods from the commonly called 60/40 shops,” Quinn said.

The 1995 zoning that became known as “the 60/40 rule” that regulates adult uses says that shops, located within 500 ft. of a residence, house of worship, school or another such shop whose merchandise or floor space is more than 40 percent X-rated material could be found in violation of the law and eventually shut down.

For the 1995 law, the city conducted a study of the impact of porn on the surrounding community. The courts declared the zoning to be constitutional. But many X-rated shops began to fake the 60 percent nonporn requirement. Multiple copies of a single kid’s video was one ruse — and, eventually, sex toys were declared to be nonpornographic “marital aids.” Porn shops also found ways to shrink the 500-ft. rule.

In 2001, the city amended the zoning to close the loopholes, but the coalition of adult shops and topless bars challenged the action on the grounds that the city did not conduct a new study on the impact of the tighter law on the neighborhood. State Supreme Court Justice Louis B. York in October 2003 agreed with the plaintiffs, but the city appealed.

All four judges on the Appellate Division panel, headed by Judge Eugene Nardelli, reversed Justice York and found for the city, ruling the 2001 amendment was constitutional.

Herold Price Fahringer, attorney for a coalition of X-rated plaintiffs, said that if the law is eventually upheld, it could force 85 percent of adult-use shops to close. He said the ruling would amount to an unconstitutional restraint based on the content of the material sold.

Alan Jacobs, a 100 Block W. 13th St. Association leader and head of a Greenwich Village Block Associations task force on adult-use shops, said he was pleasantly surprised by the Appellate Division ruling and echoed a commonly held feeling that signage and window displays and clustering of adult-use shops were the real issues. “I just want legislation that can be enforced,” he said.

Jacobs said he feared the Appellate Division ruling might not help curb the display of sex toys. The cluster of shops at the intersection of Sixth Ave. with W. Fourth and Bleecker Sts. has offended many neighbors, he noted. “The question is: Are dildoes and lingerie protected by the First Amendment?” he asked

Darren Sukenick, a senior vice president of the Douglas Elliman real estate firm and a Chelsea resident who became involved last year in community efforts to tone down the widow displays of the Blue Room and Rainbow Station, two adult-use shops on Eighth Ave., said he was delighted with the Appellate Division ruling. “We’ve had to go a year and a half with a 60/40 law full of loopholes,” he said.

State Senator Tom Duane, however, reiterated his long-held belief that the adult-use zoning has led to a concentration of porn shops in the Village. “It’s forced a cluster of topless bars to the West Side,” he added. Duane said he is in favor of discouraging landlords from renting to porn shop operators.

Village advocates say it’s obvious that the financial backing of adult-use shops is suspect. Porn shops pay far above the commercial market rents and no one sees the crowds of customers going in and out that would justify the expense, neighborhood advocates say.

Peter Greenough, of the Central Village Block Association, said the issue is not free speech but the abuse of laws to further the interest of commercial pornographers. “They call themselves ‘adult’ shops. Well we’re all adults and we’d like them to act like adults. It’s not free speech, it’s about making money,” said Greenough.

Elaine Goldman of the Christopher St. Block Association said, “We all hope that the ruling helps, but they’ll probably go all the way to the [U.S.] Supreme Court. What’s to stop them? It’s who has the money to hire the best lawyers.” Goldman said there have always been porn shops in the Village, “but they were discreet until they got more arrogant and more blatant.”

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