2001 NYC Zoning Amendments Finally Declared Unconstitutional

NEW YORK CITY—Remember Rudy Giuliani? You know: the adulterous former New York City mayor who had (and perhaps still has) pretensions of running for President? The one who told the city's Planning Department to find a way to get all the porn out of Times Square—and anywhere else they could find it? The result of the city's 1994 "Adult Entertainment Study," which found that adult businesses "particularly when concentrated in a specific area, tend to produce negative secondary effects such as increased crime, decreased property values, reduced commercial activities, and erosion of community character," was a 1995 "zoning amendment" that banned all adult businesses from all residential and most commercial and manufacturing areas of the city, plus it established a 500-foot "buffer zone" from what have become known as "sensitive uses": houses of worship, schools, and day care centers. AVN has been covering adult businesses' fight against that zoning ordinance for more than a decade—for instance, here, here, here, here, here, here and here—and while the vast majority of the city's adult businesses have been forced to close down, relocate or to "water down" their adult stock by bringing in more mainstream books, magazines, videos and souvenirs, thanks to a New York Appellate Court ruling issued today, the fight that has been going on since 2002 may finally be over. The cases are styled For The People Theaters of N.Y., d/b/a Fair Theater, et al v. City of New York and Ten's Cabaret, Inc. v. City of New York, and at issue was the city's attempt, in 2001, to further amend the 1995 zoning amendment so that even a business that devoted less than the "magic" 40 percent of its floor space to adult (whether videos, magazines or stripping) could still be considered an "adult establishment" for zoning purposes, and could therefore be forced to move or close down. The 2001 amendments also allowed the city to disregard a business's non-adult material if the business, for example, put the adult products near the front of the store, or had its cash register in the adult section, or even had signage that was larger for the adult material than the non-adult. In short, the city wanted to close down any business that had more than a minuscule amount of adult merchandise, and it was prepared to split any hairs to do so. Therefore, in 2002, both the Fair Theater (which was the subject of a documentary short which debuted last week in Los Angeles at Outfest) and Ten's Cabaret sued the city to overturn the 2001 zoning amendments, in part because the city had no new evidence that would justify altering the 1995 amendment. The plaintiffs were represented by the late Herald Price Fahringer and his partners, Erica T. Dubno and Nicole Neckles, as well as Edward S. Rudofsky and Martin P. Mehler. In its ruling, the Appellate Court detailed the history of the legal fight, where generally speaking, the adult businesses lost at the trial level but won at least reconsideration at the appellate level, the last such reversal-and-remand occurring in 2011, with the New York Supreme Court (which is New York's trial-level court) in 2012 holding that the 2001 amendments were unconstitutional, and it enjoined the city from enforcing them. Of course, as anyone who's been to Times Square and its vicinity in the past few years knows, even with the 2001 amendments in limbo, the area is still nearly devoid of adult merchandise—but the city appealed the Supreme Court's ruling nonetheless. The main question before the Appellate Court was whether the city could justify the 2001 amendments based on the 1994 Adult Entertainment Study, and to that end, the court looked at four factors that the city claimed indicated that the revamped businesses were still as "adult in character" as they had been before the 1995 zoning amendment went into effect. Those factors were whether the businesses had a "predominant, ongoing focus on adult materials," which could be deduced from how accessible the store's non-adult materials were, whether minors were allowed entry to the store, whether the store had arcade booths, and whether the signage was predominantly advertising the adult material. The Appellate Court concluded that all of those factors were significantly changed from their pre-zoning amendment days, and that the city would have had to present additional evidence beyond the 1994 study to support the 2001 amendments. The court found favor with similar arguments from adult cabaret owners, who had added restaurants, amusements (like pool tables), sports lounges and live music to balance out the topless dancing that still took place. The Appellate Court's decision was 3-2 in favor of the adult businesses, with two of the judges, Richard T. Andrias and Leland G. DeGrasse, filing a dissent that was a bit longer than the majority decision. The complete decision can be found here.