Cincinnati's adult book stores won a court victory Tuesday when a judge threw out the city law that licenses sexually oriented businesses.

        Municipal Judge Ralph E. Winkler ruled the law is unconstitutional because businesses that are refused a license do not have an adequate right to appeal.

Winkler

        The judge's decision could leave the city with little or no control over where sexually explicit material is sold.

        Several adult stores, including some owned by Hustler publisher Larry Flynt, have been investigated or charged under the city's law in recent years.

        Judge Winkler's case involved Tip Top Books in Corryville, which had been accused of operating a sexually oriented business without a license.

        “We're very happy with this decision,” said Joseph Neuhaus, the store's owner. “The law is a violation of our First Amendment rights. We believe that very strongly.”

        City Councilman Phil Heimlich, a supporter of the law, vowed to appeal Judge Winkler's decision. He said the city has a right to regulate and license sexually oriented businesses.

        The law requires stores to get licenses if a “significant portion” of the merchandise is sexually oriented.

        “I'm confident we'll be successful in overturning this decision,” Mr. Heimlich said. “It's critical we put all our legal resources to bear on this issue.”

        He said the city's law is supported by several recent court decisions, including a federal court ruling this year that declared the law did not violate the First Amendment right of free expression.

        But in the Tip Top case, Judge Winkler's objections were not based on the broad issue of First Amendment rights. Instead, the judge focused on the technical issue of how the city handles applications for licenses.

        Under the law, store owners apply for a license with the city treasurer. The treasurer then reviews the case and either accepts or rejects the application.

        If the application is rejected, the store owner's only option is to ask the treasurer to reconsider.

        Judge Winkler said that's not good enough. He said the constitution requires a “prompt judicial review” of the treasurer's original decision.

        Tip Top's attorney, H. Louis Sirkin, praised the judge's decision but would not discuss what it means for other stores that sell explicit material in Cincinnati. He said he expects the city to appeal Judge Winkler's decision.

        No matter what happens with the appeal, Mr. Neuhaus said he doesn't think the law should apply to his store.

        He said Tip Top sells a variety of mainstream material in addition to adult videotapes and magazines.

        “We sell a lot of adult items in the store, but there's a lot of other items, too,” Mr. Neuhaus said. “I don't think we should be considered a sex shop.”

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