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May 10, 2010

City holds off citing Family Video

— Is the adult-video library at Family Video “significant” enough for the City of Lockport to shut it down?

Code enforcers are taking a wait-and-see stance on the legality of the adult video section of the Family Video store, 76 East Ave.

They’re waiting on a ruling from state Supreme Court in Erie County, regarding the legality of the adult-film section in the Family Video store at Colvin Boulevard, Town of Tonawanda.

If Justice Donna Siwek rules in Family Video’s favor, there may be no point in Lockport code enforcers trying to shut down a portion of the East Avenue store, according to Matthew Brooks, assistant city attorney.

“We’re not going to reinvent the wheel, incur legal expenses, if the law’s not supporting us,” Brooks said Monday.

In mid-April, the City of Lockport sent a warning notice to Family Video’s Illinois-based corporate office saying the adult-video section of the Lockport store violates local zoning law.

Adult businesses may only operate in industrial zones, according to city code, and the East Avenue parcel is zoned for general commercial use. The letter told Family Video to have the adult section “removed” by Monday or face a court summons.

Family Video’s Lockport store contains an adult video library in a room marked adults-only. The library was added to store inventory around June 2009, according to information Brooks received from Todd Bezenah, Family Video regional manager.

Bezenah met with city officials April 30 and indicated Family Video would argue the adult library is not an “adult business” as defined in the city code.

The code defines an adult book store/adult video store as “a commercial establishment that is customarily not open to the public generally, but excludes any minor by reason of age and, as one of its principal business purposes” offers for sale or rent media depicting or describing sexual activities.

Further, it says an establishment doesn’t have to be primarily an adult business, it may be partially so, and subject to the zoning prohibition, if sale or rental of adult materials constitutes “a significant use” based upon visible inventory or sales.

The Town of Tonawanda sought an injunction against Family Video to stop it from offering adult materials for sale or rent at the Colvin Boulevard location. The town defines an adult store as one in which a “substantial or significant portion of its stock-in-trade” is adult-oriented — and Family Video argues the adult library at Colvin is neither.

Bezenah reportedly hinted the same argument would come into play in a Lockport zoning fight. Sale or rental of adult videos makes up about 1 percent of total sales in the Lockport store, he told Brooks.

Further, Chief Building Inspector Jason Dool said, the adult section physically occupies less than 4 percent of total floor space, and adult videos comprise less than 5 percent of the store’s total inventory.

“The ordinance says ‘significant use,’ so the question is what’s significant? ... In the research I’ve done, some municipalities allow up to 5 percent of floor area or total business” before the adult-business zoning provision kicks in, Dool said.

It could be argued the sale of an adult film in a general-audience video store is comparable to the sale of a brown-wrapped adult magazine in a convenience store, he and Brooks added.

Bezenah did not return a request for comment on Family Video’s adult libraries Monday.

Since the Tonawanda and Lockport laws and disputes with Family Video are similar, Lockport will wait on a ruling in the Tonawanda case, Brooks said; the Tonawanda ruling could be cited by one side or the other in Lockport litigation.

The adult section of the East Avenue store came to public attention in late March, when Second Ward Alderman Jack Smith demanded the building inspection department cite it.

When the store’s site plan was approved by the planning board in the summer of 2006, discussion about the plan centered mainly on the appearance of the building and lot. A board member did ask a Family Video representative about the chain’s intention to offer adult materials; the representative said the store would not have them.

From news accounts, it appears Tonawanda officials were told the same before approving the Colvin Boulevard store. Now, Family Video’s attorney, Paul Cambria, says Family Video promised no adult material at the time the store was opened — not forever.

Again, according to Brooks, Lockport officials heard the same.

Bezenah “says they lived up to their bargain (with the planning board); they did not have adult videos when they opened. As time passed, they tested the waters ... and decided they could” manage the section in a manner that wouldn’t offend or threaten customers, Brooks said.

The adult video library is in a room in the back of the business, past the restrooms; the door into it is marked “adults only; must be 18” but it is not locked. Mirrors are placed over the area so employees can monitor who goes in.

“We’re told it’s not the kind of place where an unsuspecting person will stumble on to (the adult room),” Dool said. “If (legally) the use is not significant, realistically, there’s nothing we can do about it.”

Siwek’s ruling is expected within a couple weeks, according to city and court sources.

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