What’s Going To Happen To Sex Toy Retailers In New York City?

New York City, a well-known mecca for people who want access to things day or night, has been on the receiving end of restrictions in regards to sex toy retailers.

What Happened

At the beginning of this month, a three-judge 2nd Circuit Court of Appeals ruled to uphold the enforcement of a zoning law amendment from 2001 that amended a zoning ordinance from 1995. The ordinance prohibiting the operation of adult entertainment businesses in lots of Manhattan was initially put in place to keep sexually oriented businesses like “peep-show” bookstores and strip clubs, in certain commercial districts. Mandating distance between these businesses and other establishments like schools and churches. At first, this seemed like a sensible decision that none could argue.

Furthering NYC’s attempts to clean up the Times Square area of the city, the law’s original definition of “adult establishments” meant that adult businesses had to contain 40% or more sexual content in its area/stock (giving way to the infamous 60/40 loophole). The 2001 amendment eliminated that 40% rule, re-aiming zoning restrictions at any retailer that “primarily” marketed adult entertainment.

A wide variety of establishments fell under this rule.

Editor's Note* The old law allowed businesses to not be classified as adult establishments if they had less than 40% or more of sexual content in their area/stock.

The law, embroiled in litigation since, underwent that recent district court judges' ruling allowing New York to enforce the old amendment. As of last week, plaintiffs filed for an “en banc” rehearing before the full 2nd Circuit judges.

What’s Happening Now

The adult business owners asking for the “en banc” claim that the circuit judge panel did not:

1.)    Independently examine the entire record, overlooking a substantial decrease in the number of adult businesses since 2001

2.)    Did not engage in a “How Speech Will Fare,” ignoring what the petitioners say could have resulted in an “immediate devastating impact on the public’s access to this type of expression.”

3.)    Overlooked the findings that there have been no negative “secondary effects” from the presence of adult businesses

4.)    Overlooked New York City’s burden of proving that the zoning restrictions do not impinge on speech more than is necessary.

5.)    Consider that parts of the July 8th ruling conflict with multiple Supreme Court rulings on free speech

Where this will all lead for adult toy retailers, strip clubs, even book sellers that might have adult-themed hardcovers in their inventory, is yet to be seen. The en banc petition is pending.