60/40 Split

A look at New York City's growing attempts to bring adult-video stores to their knees.
July 28, 2010

(DVD Video and The Blue Store)
During its long history, a certain midtown Manhattan adult store—let’s call it the Love Shack—rarely, if ever, closed its front doors. It was a point of professional pride for the owners, not to mention a convenience for the randy customers. Yet one day four years ago, those doors were locked to the public permanently.
You could see the Shack’s shuttering as a victory for the city. Since Giuliani’s reign, New York had embarked on a mission to severely limit (to be diplomatic) the location and number of adult businesses via zoning laws. At the time of its closing, in fact, the Shack was technically a “60/40” store, the result of a 2001 ordinance that only allowed 40 percent of an establishment’s content to be designated as “adult,” or explicitly sexual. It’s a landmark ruling the city has used to regulate sex shops in ever-gentrifying New York.
In addition to hampering the Shack’s offerings, the authorities were citing the store for violations ranging from non-code signage to alleged hustling, as well as whatever trivial infractions they could dream up that would necessitate a fine or a time-consuming court appearance. It was like a torturous game—one designed to see how long it took before your opponent forfeited. The ongoing legal battles were devastating to the store’s already declining profit margin (thanks to the availability of online porn), so staying in business made less and less sense. When a forced closure seemed imminent, the owners reached an agreement with the city that they would shutter of their own volition.
I knew this store well. My family owned it. It put me through college, sent me to summer camp, paid for my braces and helped buy my first car (which was used, mind you). It helped afford me a comfortable, but by no means spoiled, Jewish middle-class life.
My father had to deliver the bad news that day and wasn’t looking forward to it. The morning-shift employees (some of whom had worked there for more than 20 years) had assembled for his mysterious announcement. After he explained that the store would cease operations, there was no time for tears—we had to start stripping the shelves, dismantling booths (which over the decades had gone from screening Super-8 reels to VHS to a fully computerized system), packing inventory and removing all signs of what had once been there.
Later this year, a similar scenario could play out all over the city, forcing other adult shops—including, potentially, Chelsea’s Blue Store and Unicorn, and Uptown’s Les Hommes—to either close or comply with draconian regulations. The measures in question include rules about store layout and a ban on any booths whatsoever, if a 2001 judgment withstands appeal.
You see, in March, Manhattan Supreme Court Justice Louis York ruled that, “certain bookstores and video stores which purport to operate on a ‘60/40’ basis… but nonetheless exhibit a focus on adult materials, are adult establishments notwithstanding their 60/40 configuration.”
The decision is already facing a battle from lawyer Herald Fahringer, representing a group of storeowners dubbed the Coalition for Free Expression (COFFE). They have until September to mount an appeal, which could take up to another year to settle. “What we’ve done is challenged the constitutionality of this new ordinance,” says Fahringer. “We’re arguing that the law goes too far. You can’t micromanage the store; you can’t tell the operator of a store where his cash register can be. You can’t tell them where to put their merchandise and how many [non-adult] titles they have to have.”
This brand of micromanaging, as Fahringer calls it, began during Rudy Giuliani’s first term in 1995, when he started “cleaning up” Times Square. Strict zoning laws were passed, detailing where sex shops, topless clubs, peep shows and porno theaters could be located— not within 500 feet of a school, day-care center, house of worship or another adult-oriented business. According to one source, 95 percent of the city is no longer zoned for adult businesses, in effect creating a censorship zone. And unlike other U.S. cities where zoning limits have been implemented to control adult businesses, New York refused to “grandfather” in existing establishments. Enter Fahringer and COFFE, fighting for their rights and their livelihood.
The 60/40 rule followed, dictating that no more than 40 percent of store space and quantity could be dedicated to adult material.  “To keep it simple,” Fahringer explains, “if you had 1,000 DVDs, 600 would have to be non-adult and 400 could be adult. But if the store was 1,000 square feet, 600 feet would have to be allocated to non-adult material. Basically that’s what we’re operating under now.” When first enforcing the codes, city inspectors took them very seriously, coming in to measure square footage and count merchandise. Fahringer recalls taking his own tape measure around to the COFFE stores he represented.
Some stores filled their non-adult space with any bargain videos they could find—say, 500 copies of a single Laurel & Hardy VHS title. This practice was quickly regarded as a “sham” by the city—the videos were obviously filler, never intended to fly off shelves—and the stores were still deemed adult in focus. In 2001, amendments to the zoning laws were added to close the loopholes. Challenges to these rulings, meanwhile, have been filed regularly ever since.
When Mayor Bloomberg took office in 2002, many expected a less aggressive atmosphere regarding adult businesses (and raunchy gay nightlife, for that matter, which had also been hampered by Giuliani and his enforcement of arcane cabaret statutes). But according to several bookstore owners and managers, within a few years of Bloomberg’s election, an influx of new 60/40 stores in Chelsea and around Port Authority drew the city’s ire with glaring signage and neighbor complaints, and a crackdown ensued.
Downplaying the severity of the situation, Deputy Chief Robin Binder of the New York City Law Department’s Administrative Law Division—one of the team behind the 2001 60/40 ruling—insists that, “the zoning regulations provide plenty of space for places with adult uses to operate. They’re just restricted from being near schools, houses of worship, and near residential districts.”
Ironically enough, by the time the 2001 case is finally wrapped up—and nobody knows when that will be—there may not be any 60/40s left to shut down. New York City’s strict ordinances, coupled with the rise of high-speed Internet porn and a sluggish economy, are doing a fine enough job of driving the adult businesses into oblivion. “I don’t think they have to worry about people opening a new store nowadays,” says one store manager. “A lot probably will close on their own.”
What will we lose when these sex shops disappear altogether? Certainly not the merchandise—adult-video sites are booming, Walgreens and Duane Reade sell an increasingly sophisticated variety of lube and condoms, and dedicated boutiques like Babeland and The Pleasure Chest—currently unmolested by the city’s witch hunt—offer anything you’d want to stick inside yourself or a partner.
Which leaves the sleaze—an element you can only find in brick-and-mortar “dirty bookstores.” Manhunt and Grindr are great, but they don’t offer the spontaneity of buddy booths or the alluring scent of sex, poppers and disinfectant. Such things are electric—and part of New York’s rich gay history. I had my own special moments trolling Times Square booths back in the day, getting a visceral thrill from the occasional hand job.  I’m not so interested in that scene anymore (in fact, not at all), but its disappearance is a loss. It should still be an option for consenting adults.
Maybe it’s time to start over. Some enterprising P.T. Barnum of erotica could get their hands on the zoning map, invest in a chunk of what few free-expression zones still exist—even if they’re in a less-convenient industrial nook in one of the outer boroughs—and create something new and exciting. Something that says, “fuck you” to bureaucratic Puritans and delivers raunchy fun off the city’s radar. Yes, perhaps it’s the 60/40’s time to go the way of the dodo. But not sex—not from this city.
“Without sex and vice you can’t have a great city,” says longtime gay civil libertarian Bill Dobbs. “The campaign to get rid of erotica in this town is like cutting the underbelly out. Eventually it will suffocate New York. Pleasure and erotica refresh culture—we need to accommodate pleasure, erotica and sexiness rather than try and suffocate them.”