Decade-Old NYC Anti-Adult Zoning Law Struck Down

NEW YORK CITY—In an outcome long desired by New York City adult business owners, a State Supreme Court Justice, sitting in Manhattan, has struck down a 2001 amendment to the city's zoning code which was enacted in an attempt to further limit the number of such businesses operating within the city.

According to an article in The New York Times, Justice Louis B. York ruled on Thursday that the expanded definition of an adult business incorporated in the 2001 zoning law was improper, and that "mixed-use establishments were not shams and did not create a public nuisance in their communities, and that the city had sufficient tools to close any establishment that skirted the 40 percent rule."

"These entities no longer operate in an atmosphere placing more dominance of sexual matters over non-sexual ones," Justice York said in his ruling. "What the city is really regulating is the content of expression, clearly a violation of the plaintiff’s rights to freedom of speech."

Since 1995, New York City has had an anti-adult-business zoning law which, as is typical of such laws, prohibited adult businesses ("establishments") from operating within 500 feet of schools, churches, residential areas or each other, with "adult establishment" being defined as any business whose sexually oriented products (or services, in the case of strip clubs) accounted for more than 40 percent of its material.

Immediately upon the law's passage, just about every adult store in Manhattan brought in extra merchandise—mainstream videotapes for video stores; t-shirts, lapel buttons, postcards, statuettes and other "chachkas" for novelty stores and even strip clubs—to bring the now-mixed-use establishments "up to code."

Needless to say, this move by the adult retailers didn't sit well with the city council, since the unstated objective of the 1995 law had been to close as many adult businesses as possible, or at least to force them to move to the "outskirts of town"—like the industrial areas surrounding Kennedy and LaGuardia Airports. And indeed, the law had gone a long way to accomplishing that goal, forcing many adult stores and theaters out of the Times Square area, which quickly became dominated by such mainstream businesses as Disney and Sony.

Many adult stores survived, though, albeit on Eighth Avenue and other less-trodden areas. But the council quickly realized that the remaining "mixed-use" stores still made the majority of their income from their adult products, so in 2001, the council tried to revamp its definition of "adult establishment" to include several factors other than the percent of adult merchandise. After the ordinance passed, a store could be considered adult if, for example, its stock were arranged in the store's layout so as to favor the adult material, and perhaps most importantly, whether more than 40 percent of the store's gross income was attributable to sales of adult merchandise.

Trouble is, since NYC's attempted restrictions weren't based on the so-called "secondary effects" doctrine approved by the U.S. Supreme Court in City of Renton v. Playtime Theatres, it was clear from the beginning that the zoning changes were content-based—and when a coalition of adult businesses sued the city on that basis, Justice York, the judge before whom the case was originally brought in 2003, threw out those zoning amendments as unconstitutional. However, he did say that if the city could show a need to control negative "secondary effects" on the surrounding community. The city attempted to do so, leading Judge York to reverse his 2005 decision in 2009, and again in 2010 after the state Court of Appeals overturned his 2009 decision, as it eventually did with Justice York's 2010 similar ruling. Unless the City Attorney's office appeals the current ruling, the city will go back to its 1995 zoning ordinance and existing "mixed-use" businesses will continue to operate.

"We have adhered to what the law was," said Martin P. Mehler, attorney for several New York strip clubs. "It has accomplished its goal of doing away with that tawdry atmosphere that used to exist in Times Square, and there was no need to take away a basic First Amendment right."

Indeed; Judge York included in his decision nine pages detailing how the "mixed-use" stores and clubs have "less garish signage" than they had in the '90s, how some of them segregate their adult material from non-adult, and how much of the non-sexual material is of "legitimate interest" to customers.

"The overarching thesis is that people have a right of choice," said Herald Price Fahringer, an attorney for some of the plaintiff video stores. "If I want to go in and buy an erotic tape ... I have a right to do that."

But the fight may not be over.

"The city's ability to regulate adult establishments is critical to preserving neighborhood quality of life," said Assistant City Attorney Robin Binder, in announcing that the city intends to appeal Justice York's ruling.