New York City Zoning Battle Heads to U.S. Supreme Court

NEW YORK CITY—Things were looking up in 2015. Gay people were getting their rights officially recognized, online sites which made most of their money off of pirated content were beginning to go legit ... and New York City lost its battle in the New York Appeals Division, First Department (despite its name, actually a lower level court) to zone adult video stores, adult cabarets and movie theaters out of existence. Yay! But the "city that never sleeps" once again refused to catch some ZZZs, and appealed the Appeals Division's decision on the stores and cabarets—for some reason, the theaters were left out—to the state's highest court, the New York Court of Appeals, which reversed the lower court's decision this past June—and the fight was back on! "The New York Court of Appeals reversed the lower two courts' decisions and held against us," explained Erica Dubno, the attorney representing about 25 adult video stores affected by the law, "and they upheld the constitutionality of the 2001 amendments to the New York City zoning resolution, which completely eliminates the 60/40 rule as to cabarets and clubs, and it virtually eviscerates the 60/40 rule in relation to video stores." Back in 1995, the "60/40 rule" was supposed to be the Big Apple's "solution" to all of those adult stores that lined 42nd Street and some of the avenues in the Times Square area. It set up a system where if a video store had more than 40 percent of its floor space or more than 40 percent of its stock devoted to adult, it was considered an "adult business" and would be forced to close unless it reduced its floor space or stock to less than 40 percent levels. Many of the stores did this fairly creatively, by bringing in novelties like miniature models of the Statue of Liberty and other tourist-y novelties, as well as mainstream DVDs of cartoons or westerns or, really, anything they could get fairly cheaply until the new items brought the store's mainstream content above the 60 percent mark. Oddly enough, city inspectors noticed this ploy, and in 2001, the city passed a series of amendments to the adult zoning ordinance—and they were doozies! The 60/40 rule remained in place, but the city added eight other factors to "distinguish" adult stores from non-adult. "The eight factors are, if you have a viewing booth, then even if you have less than 40 percent stock or floor space devoted to adult, you're still considered an adult establishment and your place is a sham," Dubno explained. "Now, in determining what is adult stock, the courts have historically looked to printed or visual media. They are talking about DVDs, magazines, VHS tapes and books. Toys were not part of the definition of printed or visual media. The city has, as part of its 2001 resolution, added packaging to be part of the mix of the determination under the 60/40 ratio. So if you have lingerie, the lingerie itself does not count as adult stock one way or the other. However, if the lingerie's packaging has a picture of a woman wearing the lingerie and you can see her butt cheeks or the part of her breast immediately below the top of the areola, then that would be considered adult, and the packaging could conceivable fall within it. "If you differentiate how you rent your material, if your adult is available for rental or sale and your non-adult is just available for sale, then it's a sham and you can be called an adult establishment," she continued. "If a customer has to pass through an area with adult material to access non-adult material, then you're non-adult and considered a sham. If you have a greater variety of adult titles than non-adult titles, then all of your non-adult is considered a sham. We had a client years ago who had a store up in the Bronx, and he had a very large selection of cartoon DVDs, and it was a Popeye cartoon, and he had like 5,000 copies of the exact same non-adult film. Maybe there was a demand for it, but what they were saying was, he didn't have a variety of non-adult. He basically had one title. He had some other stuff, but what they were saying was, if you've got a thousand copies of the same non-adult film, that that in and of itself is a sham. There are a lot of arguments against that. If that one non-adult thing that you have lots of happens to be a Bible, or a really popular movie like Titanic, then what they're doing is censoring your expression because it's saying that you cannot have a greater variety of adult titles than non-adult titles, and that to me is pure censorship. And when they are dictating the type of titles and the variety of titles that you can have in your establishment, that is censorship, and so that was one of the factors. "Another factor is, if you have a cash register, you are not allowed to have somebody pay for non-adult material at a cash register where there's any adult material nearby," she continued. "So if you happen to have a selection of adult magazines on the counter right next to the register, and that's your only counter in the store, you're automatically considered an adult establishment because according to this zoning amendment, anyone who wants to pay for something non-adult cannot be forced to pay for it at a counter than also has adult material. There's also a rule that says you are not allowed to exclude minors from the entire store. You have to allow minors into any portion of the non-adult area. So if you have a section of non-adult material, you have to allow minors in. Now that's a problem because while an X-rated video may be considered adult under the zoning, maybe there's a marital aid that might be extremely suggestive or explicit that is perfectly fine under the zoning law, but that you might not want kids to see. You might also have some other items there that you don't necessarily want kids in there to see, but the rule is that you cannot exclude minors from any non-adult area. That could be extremely difficult logistically, and that, to me, is one of the most problematic ones. A couple of more: You can't have your signage have a disproportionate focus on the adult as opposed to the non-adult material. Another is not just your signage but what you actually have in your window. You're not allowed to have a greater proportion of adult in your window than non-adult." But even if the store can deal with all that, there's an unofficial "ninth factor" to contend with. "Now, the last one, a ninth factor, is that the Commissioner of the Buildings Department can, in his or her discretion, come up with any other grounds which he or she believe makes the non-adult material to be basically a sham," Dubno said. "This is the one we've jumped up and down about and said, 'You can't be serious !?! You're just going to give them unbridled discretion? So that's where we stand with that." Well, not quite. The city realized that the adult store owners weren't going to quit their fight for their right to exist, and even after the Court of Appeals reversed the stores' previous wins, they agreed to stay certain portions of the 2001 law for 30 days while Dubno filed an application for a rehearing with the Court of Appeals, as well as a stay of its decision—and the city continued to abide by its self-imposed stay even after the Court of Appeals turned both applications down. Dubno's next step was to seek a federal restraining order to prevent the 2001 regs from going into effect, and so on July 5, she hand-delivered a stay application to the United States Supreme Court. Now, each justice of the high court is given responsibility to handle applications of this sort for a particular section of the country, and as it turned out, the justice considering Dubno's federal stay application was famous liberal Ruth Bader Ginsburg. Sadly, Ginsburg turned it down—but she didn't preclude Dubno from filing a petition for certiorari with the full Supreme Court—an action that Dubno expects to take within the next week. "The city has agreed to stay enforcement of the proceedings as to existing video stores while we seek review in the Supreme Court," Dubno reported. "However, the only factors that they're fully agreed to stay enforcement of are the no-booth requirement and they're not going to go after them on the age requirement, the excluding minors thing. But technically, establishments are required to abide by all of the other provisions. Existing stores have to comply with all the factors except for the booth requirement, the age requirement, and they've also agreed not to enforce the one that says the Commissioner can come up with whatever rules he or she wants. They are fully authorized to enforce the law against new places. We entered into an agreement with the city but we could not agree as to any new businesses coming in; they are required to comply with the 2001 resolution." Of course, video stores aren't the only ones contesting the city's zoning laws; there are also the city's strip clubs and adult nightclubs, which have a different set of problems. However, Dubno said she's been working closely with the attorney representing the clubs, Ed Rudovsky, and she expects that Rudovsky will be filing his own cert petition on behalf of the clubs, which in any case will have to be done before the court-mandated December 11 deadline.