New York's Zoning Laws Create X-Rated Hybrids

From the outside, with its blinking lights, Fun City looks like an arcade. And its windows on 42nd Street display videotapes of "Snow White" and "Titanic." So it's no surprise that Tenika, Michelle, and Zsa-ne, teenage girls from the Bronx, wandered in looking for computer games.

As they browsed, they suddenly realized they had walked into an adult store, where men shuffled past them to get to hard-core pornography in the back. After a quick giggle, they ran out to the sidewalk, talking about the sexual items they had seen on the walls.

Only three months ago, the girls wouldn't have been able to mistake Fun City for an arcade. But now that the city has won challenges to zoning laws all the way up to the US Supreme Court, G-rated videos and other nonadult merchandise are cropping up in porn-shop windows. The stores are attempting to comply with requirements that a substantial portion of their business not be X-rated.

In 1995, New York Mayor Rudolph Giuliani signed into law the new zoning code, which bars pornographic video stores, strip clubs, and other X-rated establishments from residential neighborhoods and zones within 500 feet of schools, houses of worship, and other adult businesses.

His efforts have focused the attention of mayors across the country as they see the benefits of smutless economic development. Moreover, if Mr. Giuliani runs for higher office, cleaning up Times Square will become yet another notch in his belt, pundits say.

But so far, the city has had only limited success in closing down the porn purveyors. Of the 164 adult businesses in New York when the zoning kicked in, the city said only 20 were in compliance. In late July, just after the Supreme Court ruled in favor of the city, 21 of the businesses closed their doors. After inspecting other places, the city has tried to shutter another 29. But some have transformed into other types of businesses, such as record stores.

Herald Price Fahringer, a First Amendment lawyer who represents 107 of the establishments, says the Republican mayor is becoming increasingly frustrated that the stores are still in business. To prove that the stores are complying, Mr. Fahringer has brought in architects to measure space and accountants to count tapes.

But the city is sending out its own porn police to observe the commerce. According to Steve Fishner, the mayor's criminal-justice coordinator, the inspectors are checking out the type of material for sale and what customers are actually buying. He says the city has a rough "guideline" that not more than 40 percent of the commerce can be adult-related. "Not necessarily floor space or shelf space," he says, adding, "Our interpretation is 40 percent of actual use, what is actually going on."

Fahringer argues that a state judge, Steven Crane, has rejected the city's interpretation of compliance.

Mr. Fishner is hoping that the "marketplace" will force the owners of these hybrid businesses to close, since they now have less shelf space devoted to porn, which draws in profits. "If businesses in their effort to subvert the law use the marketplace, it [the market] may do the enforcement for us." He expects the number of stores to decline.

From a short visit to Show World, one of the hybrids, it appears few patrons are buying models of the Statue of Liberty or T-shirts printed with "New York City Police Department." Instead, there's a line of men buying X-rated videos. However, it's also clear that many people are mistaking the stores for regular video outlets, since many have taken down triple-X and nude-dancing signs. As Zsa-ne says of her mistaken foray into Fun City, "Hey, we're looking for fun."

The city says this is not what it wants. "If there are families of German tourists walking into the stores,... that's a bad thing," says Fishner. From Fahringer's perspective, though, this "disaster for the city" is "one of officials' own making."