Imagine the frustration of New York City inspectors, after the city passed its 1998 zoning ordinance targeting for closure any business whose stock was "substantially" — which the courts defined as more than 40 percent — adult material, only to find that store after store had added hundreds of videotapes of wrestling, classic movies and old TV shows to counterbalance the stock they actually made money from: Adult videos.
It wasn't a situation — "sham compliance," he called it — that then-Mayor Rudy Giuliani was going to take lying down, so he proposed to the City Council (which was only too happy to comply) amendments to the ordinance that would increase the number of factors inspectors could consider in order to brand a business "adult."
Such factors included, among many others, store layout — where the various titles were positioned and their prominence in the store — and perhaps most importantly, what percentage of sales and/or profit derived from adult vs. mainstream. For dance clubs, which had increased "compliance" floor space by adding everything from souvenir stands to sushi bars, the sales/profit figure was of paramount importance.
Trouble was, any attempt to look at the content of the product offered for sale, as opposed to the "secondary effects" allegedly generated by the material at its location, ran smack up against the First Amendment's prohibition on content-based restrictions, and on Sept. 10, in a lawsuit brought by over 100 adult businesses, Justice Louis B. York of Manhattan's Supreme Court (the equivalent of the Superior Court in Los Angeles, or the Common Pleas Court in Pennsylvania) threw the amendments out.
Mark Alonso, an attorney for several of the city's topless clubs including Ten's, argued that the businesses were complying with the law and the city was upset because they were still open.
"What the people are buying once they enter the store is not the city's business," he said.
Justice York said the attempt to regulate the content of the businesses was "facially unconstitutional" unless the city could show a need to control negative "secondary effects" on the surrounding community. In so ruling, York was clearly influenced by the U.S. Supreme Court's ruling in the Alameda Books case, which requires a municipality, if challenged, to prove that the alleged secondary effects exist to justify the businesses' increased regulation. City lawyers argued that the X-rated businesses attracted crime, lowered property values and decreased quality of life, but admitted that no study had been done on 60-40 businesses to support the 2001 zoning change.
To date, there exist no scientifically-run studies that such secondary effects exist, and the most recent attempt at one, in Fulton County, Ga., found that adult businesses prompt no more police calls and cause no more effect on property values than similarly-situated taverns and convenience stores. Independently-funded studies are ongoing in Mecklenberg County, North Carolina and Ft. Wayne, Indiana.
Robin Binder, the attorney for New York City, said his office would appeal the ruling.
"We believe that Justice York was wrong in finding that the amended provisions of the zoning resolution are unconstitutional," Binder said after the ruling. "Unfortunately, as a consequence of Justice York's decision, the city's neighborhoods will have to wait even longer to rid themselves of the nuisances caused by adult establishments posing as non-adult businesses."
But according to Alonso, this victory is only one stage in a much longer battle, the next phase of which is likely to take place at the end of 2003 or early 2004.
"The original [zoning] law is still in place," Alonso told AVN.com. "We've got a challenge to that now pending in court, which is wending its way through more slowly."
Alonso, however, discounted the idea that the Alameda Books decision will play a part in the upcoming hearing.
"Alameda will not prove to be that helpful to us in blowing out the original law," he stated. "I know there are other people that think they have a shot on destroying it based on Alameda, but I don't consider one in a million 'a shot.' The decisions are too well thought out, too well litigated and with all due respect, although not conclusive, and I don't particularly think even true, there was sufficient grounds for them to have enacted a 60-40 law."
We're trying to show selective enforcement," he continued. "They're picking and choosing who they're coming against. You can't just sit there and close down a club with topless women and then four blocks away, say it's perfectly okay to have [the play] "Puppetry of the Penis" playing. I don't think any court ever anticipated that the city was going to say, yes, it's not okay to have a topless woman but we're totally okay with having naked men on a stage. You can't draw that kind of distinction, because then you're sitting there and deciding what art is, and that's content-based discrimination. It's like sitting down and saying, okay, all gay porn is okay but all hetero porn is not, and I think that's where our battleground is going to be."
Alonso plans to base at least part of his argument on the fact that society has changed over the years; a concept reflected in the U.S. Supreme Court's recent decision in Lawrence v. Texas.
"Thank God for us, mainstream stuff has now become so adult that it's kind of a mish-mosh," Alonso observed, "and it's very hard to sit there and say, okay, on 21st Street, you can't have a striptease in this neighborhood, but on 20th Street, you can have the movie Striptease. How is that legal? We have plays here that are entirely nude, start to finish; no clothes, period. A perfect example is "Naked Boys Singing," which is a very popular production, both because it's camp and it's funny and it's actually got very good songs, and the other side is because gay guys like watching naked gay guys. And I fail to see how that is somehow more artistic, and therefore doesn't qualify as nudity, as opposed to a topless dancer who's doing a three-minute dance on stage. So realistically, you come up with the concept that, well, okay, you tell me what the distinction is between naked guys singing and dancing around a stage? Is it the singing? Is it the fact that they're guys? And they're saying, well, one's clearly art and one's clearly not, and I'm going, that's where you run smack into that First Amendment thing."
No date has yet been set for further consideration of the zoning law, but one thing is clear: The battle is far from over.
