Sex shops legal in New York City — for now

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NEW YORK — It's official: sex shops are legal in New York City. For now. That's what a panel of state appeals court judges have ruled following a legal battle on the issue that's been carried out for more than 14 years.

The length of the legal tangle begs the question of whether the judges' ruling will return the city to its former status of being the X-rated capital of America.

"The decision by the court of appeals is not going to be sending us back to Times Square in the 1980's," said First Amendment attorney Erica Dubno.

She argued for city sex shops, and won, based on an argument that a city effort to ban sex shops was based on a study carried out in 1994.

"A lot has changed since then," said Dubno, including, she pointed out, the proliferation of adult content on the Internet, and a city law placing significant restrictions on sex shops. Among the most notable of those is a requirement that most sex shops have only up to 40 percent of their merchandise be adult content.

Beginning in 2001, the Giuliani administration had attempted to shut down all sex shops, including those that were operating within what came to be known as 60-40 guidelines, where at least 60 percent of their merchandise and displays were not X-rated. Dubno and her recently deceased law partner, Herald Fahringer, and other attorneys got the state courts to block the city's shutdown order until a formal legal ruling on the matter could be made.

One was made two years ago in favor of the 60-40 sex shops. The city appealed and on Tuesday evening a state supreme court appeals panel, by a 3 to 2 vote, upheld the ruling.

Dubno said she was pleased because the constitutionality of her clients' case prevailed.

"It's nice to see that the courts have recognized that you can't restrict on the First Amendment based on regulations from 20 years ago," she told PIX11 News.

The appellate ruling, she pointed out, "was based upon Justice [Louis] York's decision. He had an opportunity to visit several of these stores, he went to several of the stores."

She and Fahringer, her law partner, led Justice York and other court officials on a tour of 60-40 sex businesses as part of the court's fact finding in the original legal case.

Now that an appeal of that case has been decided in the sex shops' favor, one might assume that owners and managers of those businesses might be eager to comment. Quite the contrary.

PIX11 News went to three different shops seeking comment, and nobody running any of them was interested. One shop owner tried to stop PIX11 from recording video of his store's exterior. When he was informed that viewing buildings is a right protected by the same constitutional amendment that allows his store to legally operate, he walked back into his business, but not before angrily telling PIX11 News not to enter his shop.

"Never," he said.

His store's neighbors were more than willing to speak and their comments were generally in support of the business and the ruling that upheld its right to operate.

"I do not shop in these stores," said Prentiss Donaldson, who works near a group of sex shops on Eighth Avenue in Chelsea. "They're not disturbing no one. We have more important things in the world to worry about than sex shops," the self-described observant churchgoer said.

Jason Schecter lives above the store, literally. His apartment is a few flights over the Rainbow Station sex shop in Chelsea.

"If I had kids," Schecter said, "it might be a little different, but it's okay."

But Eddie Jamal, who runs an electronics and t-shirt shop near Times Square that's next door to a sex shop, said the neighboring business hurts his.

"From 42nd to 44[th streets] they're all complaining," he said about the shops on his street other than the sex shop.

The case is not over. The city can appeal and has not yet said whether or not it will.