Erotica Store Sues Berlin Township The Town Wants To Close Fantasy Gifts. The Shop Says Its Free-speech Rights Are Being Violated.

Posted: November 30, 1997

BERLIN TOWNSHIP — A store in Greenway Shopping Center says it's fighting for its right to free speech.

The Township Council says it's fighting to protect its children.

But what the debate really comes down to is one shop's right to sell X-rated fortune cookies, furry love-cuffs and inflatable boy toys.

Fantasy Gifts, a novelty retail store, is suing the township over its right to operate on Route 73. A trial is expected to begin next spring.

Township officials have been trying to close the store since it opened in September 1996. They cite an ordinance prohibiting sex-oriented businesses in certain areas.

``We don't feel that's the type of business that should be in a shopping center, especially adjacent to the Greenway apartment complex,'' Mayor David McPeak said. ``There are too many kids in the area, and people don't want their children exposed to that.''

The township's ordinance, passed in July 1996, prohibits sexually oriented businesses from being within 1,000 feet of school bus stops, residential areas or playgrounds, among other limitations. It also requires the businesses to be in free-standing buildings.

Township attorney David Patterson said the store had opened without a mercantile license. A zoning officer sent to put the store on notice then also cited Fantasy Gifts for violating the sexually oriented business ordinance.

Dennis Block, attorney for Fantasy Gifts, acknowledged that the store sells gifts of a naughty or risque nature, but said that it's a stretch to call Fantasy Gifts a sex-oriented store. ``My client's business has no live entertainment, no peep shows, and does not engage in the sale of magazines or books that are of a hard-core nature,'' he said.

He said the store's average customer is a woman between the ages of 35 and 55, who spends about $140 per visit.

``Unlike the other adult retail establishments on Route 73, everything in our store is bought and taken away from our store,'' Block said. ``There is no on-site use of the items that are sold.''

The stores he was referring to, the Berlin News Agency and the Red Barn, have private viewing booths, where customers can watch pornographic videos. Both establishments are within a mile of Fantasy Gifts on Route 73, but council cannot regulate them because they were operating before passage of the ordinance regulating sexually oriented businesses.

Patterson acknowledged a difference between Fantasy Gifts and the other stores, but said that didn't mean Fantasy Gifts isn't sexually oriented.

``The majority of material in Fantasy Gifts is sexually oriented in nature,'' he said. ``Our argument is, if it walks like a duck, and quacks like a duck, it's a duck.''

Block called the measure an infringement upon free speech.

``Everything my client sells is speech, and it's entitled to First Amendment protection,'' he said. ``The township has to provide an avenue for us to do that. Under the current ordinance, there is no location my client can locate in Berlin Township that is accessible to the public.''

Patterson pointed out the ordinance does not outlaw sexually oriented stores, just bars them from certain areas.

Fantasy Gifts, which also sells X-rated videos, rubber lingerie and other erotica, is part of a Minnesota chain.

The Berlin store is the third to open in New Jersey, Block said. The other two are in Marlton and Turnersville.

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