In a case that has been winding through the courts since 2002, a federal judge on Monday prevented New York City from enforcing zoning laws aimed at putting adult entertainment businesses, such as strip clubs and adult bookstores, out of business. The ruling, though it puts a hold on the regulations only temporarily, was considered at least a partial win for the adult businesses, which argue that their activities are protected by the First Amendment, according to a Wall Street Journal report.
“Nude dancing and erotic materials nevertheless fall within the ambit of the First Amendment’s free speech guarantees,” Federal Judge William Pauley wrote in his 69-page ruling.
But in a statement, New York City lawyers said that “this ruling, as the Court reiterated, says nothing about whether the adult-only businesses will succeed on the merits of their claims.”
In his ruling, the judge said that “the balance of hardships” resulting from an injunction against the zoning laws would fall more heavily on the adult businesses than on the city, according to a WNBC TV report.
"This Court determines that the balance of hardships weighs in favor of Plaintiffs and the issuance of preliminary injunctive relief would not disserv the public interest," Judge Pauley wrote in his opinion. "Many of the Club Plaintiffs and Bookstore Plaintiffs have submitted affidavits attesting to the hardship they may face if the 2001 Amendments were enforced, including the loss of their businesses, the potential breach of their contracts and leases, the possibility that their employees will lose their jobs, the threat of criminal prosecution, and the financial and time costs of relocation. Moreover, granting the requested relief would not result in any harm to Defendants, who have already refrained from enforcing the 2001 Amendments for eighteen years. While this Court credits Defendants' contention that the 2001 Amendments are designed to abate the pernicious secondary effects of adult establishments, it also recognizes that the City 'does not have an interest in the enforcement of an unconstitutional law.' Rather, as this circuit has recognized, 'securing First Amendment rights is in the public interest." [Citations omitted]
Allowing the zoning laws to take effect would cut off “adequate alternative channels” for the adult businesses to exercise their right to free expression, the judge ruled, rejecting the city’s argument that the zoning laws still give adult businesses other places where they can move to comply with the zoning rules—which have been in place since 1995 but never fully enforced—without losing their right to free expression.
A judge in Manhattan last year ruled in favor of the city in the nearly-two-decade-long case, striking down the “60-40” rule that allowed adult businesses to operate as long as 60 percent of their space was devoted to non-adult entertainment or services. For example, a strip club that devoted 60 percent of its space to traditional restaurant services would be allowed to operate. But Monday’s ruling appears to at least temporarily reverse that earlier judicial decision.
Continued legal challenges have prevented the city from fully enforcing the zoning rules.
In his ruling, Pauley said that the zoning laws were a “throwback to a bygone era” and that the city was a dramatically different place than it was in the mid-1990s, when the zoning laws were written.
"We're obviously pleased and grateful for the result," stated John Weston, attorney for Plaintiff Sapphire New York, a club where many adult performers have featured. ""It's very clear that the court put a great deal of time and thought and care into the decision."
Erica Dubno, of Fahringer and Dubno, has provided the following statement regarding this decision:
"On September 30, 2019, Judge William Pauley, of the United States District Court for the Southern District of New York, granted a preliminary injunction to enjoin (prevent) New York City from enforcing a radical amendment to its zoning resolution that would have eliminated virtually all adult entertainment. 336 LLC d/b/a 'The Erotica' v. City of New York, Docket No. 18cv3732 (SDNY); 725 Eatery Corp. d/b/a 'Lace' v. City of New York, Docket No. 02cv4431 (SDNY).
"The zoning law, which was enacted in 2001 during the final days of Mayor Giuliani’s administration, has never been enforced against existing businesses. That law was based upon a study of adult businesses conducted back in 1994. In granting injunctive relief to current topless bars and videostores with peepshow booths, Judge Pauley noted that the 'adult-use regulations that are the subject of these now-revived constitutional challenges are a throwback to a bygone era. The City’s landscape has transformed dramatically since [the City] last studied the secondary effects of adult establishments twenty-five years ago. As Proust might say, the "reality that [the City] had known no longer existed," and ‘houses, roads, [and] avenues are as fugitive, alas, as the years.'
"Erica Dubno, of Fahringer & Dubno, who represents the video stores, said that 'Judge Pauley’s well-reasoned decision safeguards the First Amendment as well as the public’s right to access constitutionally protected information. The world has changed significantly since the Giuliani administration tried to sanitize New York City and eliminate these small businesses. Mayor Giuliani’s efforts to erode the First Amendment have no place in our city today. Crime is down and property values are up in the areas with businesses that offer adult entertainment. There is no need to further regulate stores which are already restricted by the existing adult zoning law that was enacted back in 1995 and approved by the state and federal courts. Many of the businesses that existed back during the Giuliani era have already closed due to high rents, development, enforcement, and the internet. The constitutionally protected stores that remain are woven into the diverse tapestry that has always made New York City great.'"
Besides Dubno, several First Amendment attorneys were involved in the case. These include Weston, Edward Rudofsky, Daniel Silver, Randy Garrou and Jennifer Kinsley, all of whom represent the adult nightclubs.
Judge Pauley has scheduled a status conference between the parties for October 31 (costumes optional), and counsel have been directed to file a joint status report by October 24 "detailing their respective positions on how to proceed with the balance of this action."
