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Family Video wins ruling allowing adult material

New York – from – Family Video may continue to sell and rent adult videos at its Town of Tonawanda store, a judge ruled Friday.

Characterizing the town’s adult use local law as “impermissibly vague” under the state or U. S. Constitution, State Supreme Court Justice Donna M. Siwek denied the town’s request for a preliminary injunction against the store on Colvin Boulevard, near Brighton Road.

The judge further enjoined the town from enforcing the adult use law against Family Video at that location.

“We’ll be reviewing the decision and evaluating our options from there,” Town Attorney Daniel T. Cavarello said.

The town took Family Video to court after a resident complained about a back room that offered adult videos. The materials showed up after a representative of the Illinois-based chain reassured town officials that such fare wouldn’t be offered at the location.

The town had contended the site, in a general business district, wasn’t zoned for “adult use” businesses.

In her decision, Siwek acknowledged that the town appeared to “have gone to great lengths to protect the health, safety, morals and general welfare” of its communities and neighborhoods. She cited a study the town had conducted to draft its adult use ordinance.

“The ordinance, however, as ultimately drafted and as applied to Family Video is constitutionally defective,” Siwek wrote. “The provision . . . which classifies an establishment as an adult bookstore and/or adult video store if it simply maintains a ‘segment or section’ of the store in violation of the adult use law is unconstitutional.”

“I think it’s a straightforward and honest decision, based on the law,” Paul J. Cambria Jr., the attorney representing Family Video, said Friday afternoon.

“There wasn’t anything unusual about the decision. It just followed the law as it has been interpreted by other courts — including federal appeals courts.”

“If you think about it, this is exactly the way adult material should be provided to the public: in a private room where you have to be 18 and show proof of being 18,” Cambria said.

In a March appearance before Siwek, Cambria had argued that “segment” and “section” must be quantified.

Less than 5 percent of the store’s inventory and less than 5 percent of its retail area are devoted to adult material, Cambria said. In the final quarter of last year, adult material accounted for only 1.6 percent of the store’s total revenue.

“These facts and figures were not disputed by the town,” Siwek wrote. “Assuming their accuracy, there can be no finding that Family Video dedicates a ‘substantial or significant’ portion of its stock-in-trade to adult videos.”


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