Appellate Court Upholds Decision In Favor Of Adult Entertainment Stores

Court found amendments expanding reach of the adult use zoning resolution to be unconstitutional.  In 2002, For the People Theaters and JGJ Merchandise Corp. filed suit to declare the 2001 Amendments to City’s adult use zoning resolution unconstitutional as a violation of the First Amendment.  The amendments broadened the resolution to cover any establishment regularly featuring live performances emphasizing specified anatomical areas or sexual activities and restricting or excluding minors.  Prior to the 2001 Amendments, the resolution only applied to an establishment if 40 percent or more of the establishment’s accessible floor area or stock was used for adult purposes.  On October 10, 2012 Justice Louis York of Supreme Court, New York County ruled for plaintiffs, declaring the 2001 Amendments unconstitutional and enjoining the City from enforcing them.

On appeal the City argued despite formal compliance with the 60/40 rule, the establishments in question still resembled establishments entirely dedicated to adult entertainment and have been found to cause negative secondary effects.  Plaintiffs argued the trial court correctly found their establishments do not resemble exclusively adult establishments, recognizing the reduction in prominence of adult materials in-store and minimizing floor space given over to adult entertainments.

On July 21, 2015 the Appellate Division, First Department voted to uphold the trial court decision in favor of the plaintiffs.  Justice Barbara Kapnick, writing for the majority, applied a four-factor test drawn from City Planning’s 1994 study of adult establishments.  The Court found the City met one factor by demonstrating the establishments promoted sexually explicit materials, but did not meet the other three factors by failing to demonstrate the advertising signage was large or graphic enough, that access by minors is sufficiently restricted, or establishment layouts make it difficult to access the adult materials.

For The People Theaters of N.Y. v. The City of New York, 121080/02, NYLJ 1202732772515, at *1 (App. Div., 1st, Decided July 21, 2015) (Attorneys: Fahringer & Dubno, Herald Price Fahringer, Erica T. Dubno, Nicole Neckles of counsel, for JGJ Merchandise Corp.; Zane and Rudofsky, Edward S. Rudofsky of counsel, and Mehler & Buscemi, Martin P. Mehler of counsel, for Ten’s Cabaret et al.; Zachary W. Carter, Elizabeth S. Natrella, Leonard Koerner, Robin Binder and Sheryl Neufeld of counsel, for City).

By:  Michael Twomey (Michael is a CityLaw Fellow and a New York Law School Graduate, Class of 2014).


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