Lockport Union-Sun & Journal Online

May 14, 2010

Judge upholds Family Video on adult films

By Joyce Miles
Lockport Union-Sun & Journal

— A state Supreme Court justice has ruled Family Video does not run afoul of zoning law by distributing adult films from its Tonawanda store.

In a case with strong parallels to an unfolding situation in the City of Lockport, Justice Donna M. Siwek ruled Tonawanda’s law regulating the siting of adult businesses is unconstitutional.

Siwek’s written ruling, released Friday, takes exception to a provision in the law defining a book store or video store as an “adult” business if even a portion of the inventory is adult-oriented.

The Town of Tonawanda Council sought an injunction to stop Family Video from maintaining an adult film section at its Colvin Boulevard store. Siwek instead ordered the town to cease prosecution of Family Video.

Her ruling says the town failed, in the law, to state what constitutes a “segment or section” of an adult book/video store. “As a result, the ordinance, as applied against Family Video, serves as a total ban of adult uses at this location. (That) is impermissibly vague.”

The adult-business zoning laws in Tonawanda and Lockport are not identical in letter, but they are in spirit. Both make industrial zones the only place where adult businesses are allowed. Lockport’s law defines an adult business as one where a “significant” portion of inventory is adult-oriented — and “significant” is not defined.

The city put Family Video on notice last month that it was violating the law and should close the adult-film room at its East Avenue store by May 15 or face prosecution.

Then enforcement officials got wind of the Tonawanda case and decided they’d wait for Siwek’s ruling before proceeding.

Family Video’s regional manager, Todd Bezenah, previously told city officials that adult film sales account for about 1 percent of sales storewide at the East Avenue location. Chief Building Inspector Jason Dool said the adult-film room, in the back of the store behind a door marked “adults only,” occupies less than 4 percent of floor space storewide and less than 5 percent of all inventory.

Family Video reports similar numbers for its Tonawanda store, and Siwek’s ruling stated outright the percentages do not reflect a “substantial or significant portion” of the store’s business.

Also, Siwek noted, a previous federal court ruling out of Grand Rapids, Mich., underscored a vague law’s power to affect places that clearly aren’t “adult” businesses, like Waldenbooks and Barnes & Noble; or the corner store/drug store that sells as few as two or three sexually explicit magazines.

Whether the City of Lockport will try enforcing its adult-business provisions on Family Video “remains to be seen,” City Attorney John Ottaviano said Friday.

“We will read the Tonawanda decision, reread our law and, if it needs to be tweaked, we will definitely revise it. As for enforcement (of the existing law), I think we would proceed with caution at this point. ... We have to be careful where we draw the line, or it ends up reaching out to the convenience stores and other unintended entities. There is a fine line there.”

Contact reporter Joyce Miles at 439-9222, ext. 6245.