The state Supreme Court here has hit New York City Mayor Rudolph Giuliani where it hurts in his ongoing war against adult entertainment. The court ruled Monday that the city administration, effectively, has no business trying to close down adult-oriented businesses because adult-oriented merchandise might sell better than non-adult oriented stock.
This ruling could keep as many as 80 adult businesses open which the city ordered closed.
Giuliani said after the ruling that it would have "some effect" on his campaign against sex-related book and video stores, but he said it wouldn't stop him from trying to close strip clubs he calls "a key problem" because of real and potential criminal trouble they attract.
The state high court didn't address a 1995 zoning law which restricted severely where adult businesses such as video stores, strip clubs, or peep shows could locate - but it did deal with a city ordinance defining adult businesses which accounted for how much of a store's stock could involve porn. And the seven justices ruled the Giuliani Administration's interpretation of that ordinance was far too broad.
That included the city's effort to close down an adult business which had actually complied with the law - an Upper West Side video store, Les Hommes, which catered to gay men. The store claimed only 24 percent of its stock involved porn, but the Giuliani Administration called it a sham, because its non-porn stock didn't sell even close to the volume in which the porn sold and meant that the store's real business was porn.
The zoning law banned any business where "a substantial portion" was devoted to X-rated material or nude performances and was within 500 feet of a school, church, or residential area, or of another porn business - keeping them mostly in industrial zones. The law was challenged on First Amendment grounds, to which the Giuliani Administration replied it wasn't trying to restrict content but curb dangerous activity it claims the businesses attract, like drugs and prostitution.
The administration had defined the law to mean no more than 40 percent of a business's floor space or display merchandise could be adult oriented. That was good enough for the Court of Appeals, which upheld the zoning law last year. The U.S. Supreme Court refused to hear an appeal, leaving the city with room to enforce the zoning law.
"The court said 40 percent means 40 percent, and the city can't go interpreting it as it pleases," says Les Hommes attorney Herald Price Fahringer. Fahringer and Norman Siegel of the New York Civil Liberties Union say the city might be studying the possibility of a new rule giving it more leeway in interpreting the 40 percent rule, but that might mean the city having to judge content explicitly and thus facing heavier constitutional burdens if that should go to court, too.
