The B.C. Supreme Court has ordered Fantasy Factory owner Tony Perry to close his sex shop at 701 Kingsway (near Fraser) within 90 days.
Perry has run the business at that location without proper city permits since late 2009. After complaints from neighbours, city staff told Perry he couldn’t operate at the site without city approval. Perry applied for a development permit, but it was denied. He appealed to the Board of Variance, which decided in the city’s favour. Perry then filed for a judicial review of the board’s judgment by the B.C. Supreme Court. His lawyers’ arguments included that there are multiple Vancouver businesses that similarly do not comply with various city requirements and no enforcement action has been taken against them. The lawyers asked that the court declare that the city “unlawfully discriminated against the Petitioners in the enforcement of the Vancouver Zoning and Development Bylaw (No. 3575) and has otherwise an unlawfully discriminatory policy with respect to Adult Retail Stores.”
But the court ruled against Perry Aug. 3. He has 30 days to file an appeal of the decision if he so chooses.
Perry, who’s operated adult-oriented businesses for decades, refused to comment when contacted by the Courier other than to say he will talk to his lawyer about his next move. In the past, he’s told the Courier that a vocal minority is trying to impose its morals on law-abiding citizens, that Fantasy Factory doesn’t cause problems, and that it attracts customers from all walks of life.
Tom Hammel, the city’s assistant director of licences and animal control, spoke to the Courier about the latest ruling Wednesday morning.
“The court ruled basically that Fantasy Factory wasn’t in compliance with the zoning bylaw. They also ruled that the city’s actions against the business weren’t discriminatory—that was one of their main points,” Hammel said. “It is important for the city and neighbours to ensure that adult retail stores are properly permitted and licensed and situated in locations that are consistent with the city’s zoning bylaws.”
Businesses such as Fantasy Factory aren’t permitted to operate within a certain distance of places such as daycares and schools.
Hammel denied the city is trying to clamp down on such businesses—an accusation Perry has made to the Courier in the past, or that the city is being too conservative in its polices.
“We are aware that there are other stores that sell products that put them into the class of adult retail stores and we’ve already started meeting with them to talk about what they’re selling. Our intent is to bring them into compliance with our bylaws,” he said. “That may mean they will have to apply for appropriate development permits and business licences or it may require them to revise their product line, so they don’t fall within the definition of adult retail.”
Hammel said he didn’t want to name names, but acknowledged the court decision referred to 17 stores, including London Drugs.
“Now 10 of those stores are London Drugs and we know that they sell a small amount of what we would consider adult retail product. There are a couple of stores on that list that were operating prior to the change to the city’s guidelines and bylaws in 1995, so they could continue but may need to apply for a proper type of business licence,” Hammel said. “The others—we’re working with them to see what we can do to get them into compliance. It’s not the city’s intent to shut down a bunch of stores.”
The Courier asked Hammel if the city would have looked into other businesses contravening its bylaws had residents not raised concerns about Fantasy Factory. He said the city’s enforcement approach has been based on complaints, so if complaints aren’t filed sometimes the city isn’t aware of the issues.
“When we become aware of something, then we will look at it,” Hammel said. “So that particular case has brought these other ones to our attention. That’s why we’re talking to them.”
Hammel also said the city isn’t concerned with Perry’s other store locations.
“This is strictly about the city’s bylaws and making sure that the city’s bylaw requirements are upheld because we have to apply them equally to all businesses.”
If Perry doesn’t appeal the case, and then refuses to shut down the Kingsway store, the city can seek a court order by way of a contempt of court application.