June 4, 1998
U.S. Appeals Court Backs NYC Plan to Curb Sex Businesses
Court Blocks New York Law On Pornographic Businesses (March 18) Judge Lifts Order Blocking Sex-Shop Law (March 7) First Store Is Padlocked Under NYC Sex-Shop Law (Sept. 20, 1997)
Join a Discussion on Mayor Giuliani and New York City Politics
By DAN BARRY
EW YORK -- Mayor Rudolph Giuliani's efforts to mold New York City into a more civil metropolis received a major boost Wednesday when a federal appeals court upheld a zoning law intended to curtail and isolate the dozens of X-rated businesses in the city.
Emboldened by language in the ruling that said the law "may be enforced forthwith," city officials quickly announced plans to dispatch inspectors to sex shops throughout the city's five boroughs, beginning Thursday morning.
But the city officials were forced to rein in their ambitions just a few minutes later, after learning that the decision would not become official under federal court rules for up to 21 days.
That technicality gave breathing room to lawyers for the sex shop owners in their increasingly desperate attempt to block the zoning law, which bans strip clubs and X-rated book and video shops from operating within 500 feet of residential areas, schools, day care centers, houses of worship -- or each other.
Following the unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in Manhattan, the lawyer for the shop owners said he would now ask the full appeals court to take up the issue. "I have never for a moment lost confidence in our constitutional claims and intend to pursue them all the way to the Supreme Court if I have to," said Herald Price Fahringer, who represents 107 adult-entertainment business owners.
But one more delay in the protracted legal battle did not still the joy of Giuliani and his aides, or of City Council members who first proposed the ban.
Giuliani called the ruling a "particularly significant victory" in his ongoing "quality of life" campaign, and said it should silence critics who contended that the zoning law violated the First Amendment rights of owners.
"This would now be 13, 14, 15, about 16 or 17 separate judges who have looked over this plan and come to the determination that the plan is legal," he said, referring to the series of state and federal court challenges that the law has faced since it was enacted in 1995.
In fact, the legal avenues available to the store and club owners are rapidly dwindling. While the owners can seek a hearing before the full panel of the Court of Appeals, such appeals are seldom accepted.
Their lawyers could then seek the intervention of the U.S. Supreme Court, but there is no certainty that the nation's highest court would agree to hear the case.
City officials said the law would affect 146 of the city's 164 X-rated businesses, although civil and criminal proceedings may delay the closings by as much as a year. "We expect that many of these establishments will realize that they have to shut down and will do so on their own," said Randy Mastro, deputy mayor for operations. "This is the last dance for sex shops."
But some shop owners said they would adapt, not close.
For example, Richard Kunis, the owner of Manhattan Video on West 39th Street, has spent the last several weeks building shelves and accumulating horror movies, war movies and even family-oriented movies, including "On Golden Pond," "Oh God! Book II" and "Holiday Singalong With Mitch Miller."
And Milton Anthony, the owner of Billy's Topless, a bar in Chelsea, said bikinis would provide his performers with the legal cover to dance uninterrupted.
For the Giuliani administration and the Council, the issue hinged on the impact that strip clubs and adult-entertainment shops have on the city's neighborhoods and economy, from Times Square and Chelsea to stretches of major boulevards in Queens.
"It's a simple proposition," Mastro said. "We want to keep sex shops away from our neighborhoods, away from our schools, away from our churches."
But the owners of adult-entertainment businesses and several gay rights groups have framed the debate as an attempt to stifle free speech, and, as one sex shop owner said, to "Giuliani-ize the city," eliminating or restricting legal and longstanding ventures that the mayor finds distasteful.