The Berlin, N.J., township council unanimously adopted an ordinance Dec. 14 limiting the hours of operation of Red Barn Bookstore. But Thomas Sherwood, owner of the gay-oriented adult establishment, vowed to fight the measure in court.
The ordinance requires Red Barn, located on Route 73, to close on Sundays and between midnight-9 a.m. Monday through Saturday.
It also imposes the same hours of operations on another adult-oriented establishment in the township, Berlin News Agency, which caters to the non-LGBT community.
Sherwood said he has a First-Amendment right to operate his store 24 hours a day, seven days a week.
“My First-Amendment rights don’t stop at midnight and start again at 9 a.m.,” he said.
He said Red Barn pays about $14,000 annually to the township in real-estate taxes.
“We support this community. I should be allowed to be open 24 hours a day. Don’t treat me any differently. Treat me the same.”
He said being open throughout the night actually makes the township safer, because staffers monitor the area for crime and accidents on the highway.
Sherwood emphasized that Red Barn doesn’t cause adverse effects sometimes associated with adult establishments — such as decreased property values, increased crime, drug trafficking, prostitution, traffic congestion or the spread of diseases.
He said homophobia appears to be a motivating factor behind the ordinance.
“We hear snide remarks from police officers about our gay customers quite frequently,” he said.
Referring to the township council, he said: “It’s like they’re in a time warp. They’re trying to bring back 1950. This is not 1950.”
Berlin Township Mayor Phyllis A. Magazzu had no comment for this story.
In September 1996, the township tried to impose the same hours-of-operation limits on Red Barn by enacting a similar ordinance.
But in September 2015, New Jersey Superior Court Judge Deborah Silverman Katz issued an injunction, preventing the township from enforcing that ordinance.
“They’re trying to do the same thing again, with a new ordinance,” Sherwood said. “But it’s still unconstitutional.”
The ordinance refers to concerns about anonymous sexual encounters and the spread of AIDS and other STDs.
But Sherwood said the store’s theater and video arcade is carefully monitored for illicit activity. He said there’s no evidence linking Red Barn to any STDs including AIDS.
“The store is carefully monitored for any illegal behavior,” he added. “We keep an eye on everything.”
In a statement to PGN, Berlin Township solicitor Eric J. Riso defended the ordinance.
“The ordinance is not violative of the First Amendment. To the contrary, hours-of-operation regulations such as those contained in the ordinance have been repeatedly upheld by the courts, including the United States Supreme Court and New Jersey Supreme Court, as permissible, content-neutral, time, place and manner restrictions. It has also been repeatedly held that municipalities can treat sexually oriented businesses differently than other businesses because of the concrete, non-speculative side effects they cause. There is likewise no merit whatsoever to the wholly unfounded and completely self-serving claims regarding the township’s motivations in adopting the ordinance, which is sexual-preference neutral.”
Sherwood said he’s prepared for a lengthy court battle, if the township attempts to enforce the new hours of operation. “We’re rolling up our sleeves and going into battle,” he said.
Sherwood, 70, said he’s a longtime supporter of the First Amendment. “I’ve been fighting First Amendment cases for 45 years,” he concluded. “I will fight any First Amendment case anywhere that I can get my hands on.”