NEW YORK — The Big Apple’s war on adult entertainment in Times Square is at a new tipping point.
Erica Dubno, an attorney who represents various New York City adult business operators, said that a recent court ruling puts several dozen establishments — specifically peep shows, strip clubs and adult DVD stores — in jeopardy, possibly out of business.
“If the ruling stands then it would sound a death knell for virtually all peep show booths in New York City and silence that form of expression,” Dubno told XBIZ. “Bookstores in most areas would have to radically restructure their businesses.”
In June, the New York Court of Appeals reinstated regulations dating to 2001 barring any establishment with "live performances characterized by an emphasis on certain specified anatomical areas or specified sexual activities,” as well as sexually explicit videos with the exception of several selected city zones.
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.
In June, the 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.
With the law now intact, the regulations could affect the handful of remaining adult entertainment businesses around Times Square that avoided being classified as adult establishments by selling a majority of nonpornographic products.
The New York City Law Department said it is deferring any enforcement of the reinstated rules until several legal issues are resolved.
In a statement, the agency said its goal would be to halt "the widespread circumvention of zoning regulations.”
Dubno, of the law firm Fahringer & Dubno, told XBIZ that her adult entertainment clients are pressing on with another challenge to the ruling.
She said that a motion for re-argument has been filed with the Court of Appeals and is pending.
