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August 08, 2017

NYC Adult Businesses Ponder Uncertain Future

NEW YORK CITY—Several news sources in the greater New York area have recently published articles "concerned" about the fact that most of the adult businesses in the Times Square area and elsewhere in the city may have to close in the wake of a June 6 decision by the New York Court of Appeals, the state's highest court, overturning lower court decisions and upholding zoning amendments enacted by the city in 2001. Those amendments detailed eight "factors" to be considered in deciding whether a business, which may have both adult and non-adult materials for sale, is actually an adult business masquerading as one which follows the current city limits which state that not more than 40 percent of the store's inventory can be adult in nature. If it exceeds that 40 percent, it's ipso facto adult. "One of those factors is, you can't exclude minors from any non-adult portion of your premises," detailed First Amendment attorney Erica Dubno, who represents several adult bookstores in the current lawsuit. "Another is, you can't pass through an adult area to get to a non-adult area. Another is, you can't have any peepshow booths or private viewing booths at all. Another is, you can't treat your adult and non-adult material differently for purposes of rental or sale. This came about specifically because of a case that we had handled in the Court of Appeals. There was a situation years ago where a store rented out their adult videos but they didn't rent out their non-adult; they only sold it, and the city said you can't do that. Also, they said you cannot have a greater variety of adult titles than non-adult titles. The reason why they enacted that one was in response to another case we won, where a store in the Bronx had brought in a large number of Spanish Popeye videos to offset its adult component—I think they claimed it was hundreds and hundreds of copies of the same Spanish Popeye cartoon, so they said, 'Well, that's a sham, because if you have multiple copies of one title and you have a greater variety of adult titles, that means you're adult.'They also don't want customers to have to pay for non-adult purchases in an area where there's adult material." In fact, since most of the "factors" had previously been litigated in court, with the city on the losing side of each one, it's almost as if whoever wrote the 2001 zoning amendments had done legal research, saw what the courts had approved for adult businesses to do, and set out to reverse those court decisions through legislation. Of all of those restrictions, the one that's most likely to cause difficult for the stores is the restriction on arcade booths, since those are big money-makers for the businesses—in fact, sometimes the only source of income that keeps the store in business in the first place. Also likely to be difficult is the requirement that the stores bring in as great a variety of mainstream DVD titles as adult, since the stores have much more competition for the rental of non-adult titles than for adult, so they're likely to take a loss by stocking as many different mainstream titles as the city requires. Yet another couple of factors relate to display and signage. A store can't have disproportionately larger signs for its adult material than its non-adult, inside and out, and it can't have a greater selection of adult merchandise in the front window than non-adult. "None of our guys put adult merchandise in the window anyway, but nevertheless, that's the rule," Dubno noted. There's also one more "factor" that could easily turn out to be more onerous than all the others. That's the one that allows the New York Commissioner of Buildings, entirely on his own volition, to add to the existing eight "factors" any requirements "relating to configuration and layout or method of operation" that he believes "render the sale or rental of 'adult printed or visual material' [to be] a substantial purpose of the business conducted in such store." If that idea sounds incredibly undemocratic... it is, since one of the prime tenets of the American judicial system is that the United States is a "government of laws, not of men"—and to have a single commissioner create new rules out of thin air in an effort to close down adult businesses is about as unAmerican as one can get. But the June Court of Appeals decision brought to a climax many years of litigation, which began with the city's original adult zoning ordinances, enacted in 1995 and based upon a study the city conducted the previous year of adult businesses, which supposedly found that the mere presence of adult businesses in a particular area led to so-called "adverse secondary effects," which included a decrease in property values and an increase in crime. Dr. Daniel Linz, a sociologist at UC-Santa Barbara, did a meta-analysis in 1999 of a large number of "secondary effects" studies and found that the vast majority of them were not performed according to scientific standards, and for several, the scientific evidence gathered did not warrant the conclusions their authors had drawn. "Even though we've had years and years of litigation and various court decisions, no court ever specifically addressed any of those factors that were incorporated in the 2001 amendments; they only dealt with the secondary-effects issue," Dubno noted. "The city consistently argued that the 2001 amendments to the zoning resolution were to shore up the original law because they said compliance by some of the stores and businesses was a sham, and that what they were going to do was to get rid of the sham compliance by the video stores. But they didn't conduct a new study, and we argued, 'Wait a second; these stores are still protected by the First Amendment; you can't just go and amend the law without doing some kind of study.' "So the case went up to the state's highest court and came back," she continued, "and the state's highest court said, actually, they don't need to do a new study if they can show that the stores and businesses that exist now are substantially similar to the ones that were found back in 1994 to cause adverse secondary effects. The bottom line is, if the businesses still have a predominant focus on adult entertainment and they're substantially the same as they were before, the city doesn't need to do a study. And there's a logic to that, but in fact, the places are very different than they were back in 1994." But as things stand right now, with Dubno already having petitioned the state Court of Appeals for a reargument, the city has agreed not to enforce two of the most important "factors" in the zoning ordinance: It is allowing the businesses to keep their arcade booths, and it is not requiring those businesses to admit minors onto the premises. It has also barred the Building Commissioner from creating any new "factors" while the issues continue to be litigated. The other "factors," however, continue to be enforced, and the suspension of the two (or, arguably, three) others do not apply to any new businesses that open, only to existing businesses. And Dubno has reason to fear for the continued existence of her clients, having told The Gothamist that if the city wins the ultimate battle, "Shops would have to break leases, fire employees, and put people out of work. And the most important thing is that it infringes on the First Amendment because it silences expression." "We were turned down for a stay by both the New York Court of Appeals and the United States Supreme Court, but the city has granted us a stay as to two of the factors, which I think is very generous of them," Dubno said. "Right now, we have a couple of avenues we can take. Number one, we currently have an application pending in the New York Court of Appeals for reargument as to the factors. If we do not prevail there, we will be making an application to the United States Supreme Court for review. We get 90 days from a decision by the New York Court of Appeals on our motion for reargument, which decision, since it's now summertime, we're not sure when they will rule, but once they do, then we can file a petition in the U.S. Supreme Court." Dubno also expressed some optimism when talking to the mainstream press. "To be completely honest with you, the de Blasio administration has been extremely decent and fair to the First Amendment businesses and they have agreed to stay enforcement on the proceedings while we seek a final resolution," she said. "During the Giuliani administration, he said he was running out and buying padlocks to shut the places down. And I think de Blasio recognizes the importance of waiting for a true and final decision before taking action against businesses."

 
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