Court: New York City Can Enforce Law Restricting Sex Shops

Court: New York City Can Enforce Law Restricting Sex Shops
Rhett Pardon

NEW YORK — New York's highest court has ruled that New York City may enforce a 2001 law to reduce the number of strip clubs and stores offering sexually explicit content without violating their operators’ First Amendment rights.

Today's unanimous ruling, 6-0, handed a victory to the city in its two decades-long effort to stop the proliferation of "adult" establishments.

Erica Dubno, a lawyer representing various adult business operators in the lawsuit, told XBIZ tonight that the ruling was discouraging.

“We are disappointed with the decision and considering all options,” Dubno said.

Industry attorney Paul Cambria told XBIZ that the decision was “very unfortunate and the product of a very conservative court.”

Cambria was not a party to the lawsuit but, along with Dubno, is a member of the First Amendment Lawyers Association (FALA), which filed an amicus brief in the case.

New York City’s 2001 law sought to plug a loophole after city leaders banned the erotic clubs and stores from residential and most commercial areas, as well as from within 500 feet of similar businesses, schools and places of worship.

That loophole involved the “60/40" test, which deemed businesses "adult" if at least 40 percent of their area or stock included sexually explicit materials or activities.  After the test was put into play, many businesses were found in “sham” compliance.

So, the city decided that businesses offering specific services, such as topless dancing or peep booths, would qualify automatically as "adult.”

A Manhattan judge found the law unconstitutional in August 2012, and was upheld by a divided state appeals court in July 2015.

Today, the New York Court of Appeals decided that previous decision took a "rigidly mechanical" approach that was in error.

In its ruling allowing curbs on sex shops and clubs, the court said, “A store that stocks non-adult magazines in the front of the store but contains and prominently advertises peep booths is no less sexual in its fundamental focus just because the peep booths are in the back and the copies of Time magazine in the front."

“The same is true of the adult eating and drinking establishments. A topless club is no less an adult establishment if it has small signs and the adjoining comedy club, seating area, or bikini bar is easy to access,” the court said in its ruling, which in effect allows New York City to enforce the 2001 law restricting sex shops. 

Rick's Cabaret, Scores and the Hustler Club will remain unaffected by the court ruling because they possess special adult entertainment licenses. But others under the 60/40 rule likely face closures.

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