140 F.3d 134 (2nd Cir. 1998), 2312, Buzzetti v. City of New York

Docket Nº:2312, Docket 97-7585.
Citation:140 F.3d 134
Party Name:Adele BUZZETTI d/b/a Cozy Cabin, and Vanessa Doe, the first and last names being fictitious, Plaintiffs-Appellants, v. THE CITY OF NEW YORK, The Department of City Planning, The Department of Buildings, The New York City Council; Rudolph W. Giuliani, Joseph Rose and Gaston Silva, in their offical capacities, Defendants-Appellees.
Case Date:March 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 134

140 F.3d 134 (2nd Cir. 1998)

Adele BUZZETTI d/b/a Cozy Cabin, and Vanessa Doe, the first

and last names being fictitious, Plaintiffs-Appellants,

v.

THE CITY OF NEW YORK, The Department of City Planning, The

Department of Buildings, The New York City Council; Rudolph

W. Giuliani, Joseph Rose and Gaston Silva, in their offical

capacities, Defendants-Appellees.

No. 2312, Docket 97-7585.

United States Court of Appeals, Second Circuit

March 20, 1998

Argued July 18, 1997.

Page 135

Ivan S. Alter, New York City (Alter & Alter, New York City), for Plaintiffs-Appellants.

Elizabeth S. Natrella, Assistant Corporation Counsel of the City of New York, New York City (Paul A. Crotty, Corporation Counsel of the City of New York, Leonard J. Koerner, Albert G. Fredericks, Assistant Corporation Counsels of the City of New York, New York City, Of Counsel) for Defendants-Appellees.

Before: WINTER, Chief Judge, JACOBS and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiffs Adele Buzzetti, doing business under the name of her cabaret, Cozy Cabin, which features topless female dancers, and Vanessa Doe, a topless dancer (using a fictitious name for the purposes of this suit), appeal from the dismissal of their complaint in the United States District Court for the Southern District of New York (John S. Martin, J.) seeking declaratory and injunctive relief against the enforcement of a New York City zoning ordinance. The ordinance regulates the permissible locations of commercial establishments featuring various forms of adult entertainment. The plaintiffs argue that because the ordinance applies to female topless entertainment, but not to male topless entertainment, it violates both the First Amendment's Free Speech Clause and the Fourteenth Amendment's Equal Protection Clause. We affirm.

BACKGROUND

Prior to November 1994, New York City's zoning law did not distinguish between adult entertainment and other commercial establishments. In late 1993, the Department of City Planning (the "DCP") undertook an "Adult Entertainment Study" (the "DCP study") to help the City Planning Commission (the "CPC" or the "Planning Commission") determine whether, like many other

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municipalities, New York City should adopt zoning regulations directed at adult entertainment establishments. This study was completed in September 1994. The DCP study included both a survey of numerous studies undertaken elsewhere--including Islip, New York; Los Angeles, California; Indianapolis, Indiana; Whittier, California; Austin, Texas; Phoenix, Arizona; Manatee County, Florida; New Hanover County, North Carolina; and the State of Minnesota--and an examination of the nature and effects of adult entertainment establishments in New York City. With respect to New York City, the DCP study referred to previous studies of adult entertainment establishments conducted by other organizations, including an August 1993 Chelsea Action Coalition and Community Board 4 study and an April 1994 study by the Times Square Business Improvement District, as well as to testimony taken at an October 1993 public hearing held by the Borough of Manhattan's Task Force on the Regulation of Sex-Related Businesses. In addition, the DCP conducted its own survey of adult entertainment establishments in New York City, focusing principally on three types of establishments: adult video and book stores, adult theaters, and topless or nude bars.

Based on these sources, the DCP study concluded that adult entertainment constituted a serious and growing problem in New York City. It noted that studies from other cities had documented numerous "negative secondary impacts" of such establishments, including "increased crime rates, depreciation of property values, deterioration of community character and the quality of urban life." DCP Study at 67. These effects were consistent with the experience of those areas of New York City marked by high concentrations of adult entertainment establishments, the study concluded. Even in areas where adult establishments were not heavily concentrated, residents, businesses, and community leaders feared the consequences of possible future proliferation. The DCP study found that there had been a sharp increase in the overall number of adult entertainment establishments in New York City in the previous 10 years, including a 26 percent increase in topless/nude bars. The DCP therefore recommended special zoning restrictions on adult entertainment.

In November 1994, the New York City Council approved a one-year interim zoning moratorium on the opening or enlargement of adult establishments. In March 1995, the DCP and the New York City Council Land Use Committee filed a joint land use review application to amend the city's zoning law to establish permanent zoning regulations applicable to adult establishments. After receiving comments from the city's five borough boards and 39 community boards, and after holding its own public hearings, the CPC approved the proposed permanent regulations on September 18, 1995. Based on the DCP study, other reports, and public testimony, the Planning Commission concluded that there were "substantial adverse secondary effects stemming from the location and concentration of adult uses" in New York, including "the negative impact adult establishments have on economic development and revitalization; their tendency to decrease property value, thereby limiting tax revenue; [the] impediment [created] to economic activity; their tendency to encourage criminal activity, particularly when the establishments are located in concentration; the proliferation of illegal sex-related businesses; their damaging impact on neighborhood character and residents including children; and the costs associated with maintaining and patrolling areas." Following additional public hearings, on October 25, 1995, the City Council approved the permanent restrictions, effective immediately. It is this set of permanent zoning restrictions ("the Zoning Amendment" or "the Amendment") that are at issue in this case.

The Zoning Amendment does not forbid the operation of any category of business. Instead, it restricts the areas in which certain sexually-oriented businesses may operate. The Zoning Amendment's regulatory scheme applies to all "adult establishment[s]," which is defined to mean a commercial establishment, a "substantial portion" of which is used as: an "adult book store," an "adult theater," an "adult eating or drinking establishment," or some "other adult commercial establishment" (or some combination

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of these). Zoning Amendment, § 12-10. Businesses fall into one of these categories of "adult establishments" if they "regularly feature" or devote a "substantial portion" of their business to entertainment or material emphasizing "specified anatomical areas" or "specified sexual activities." Id. For example,

An adult eating or drinking establishment is an eating or drinking establishment which regularly features any one or more of the following:

(1) live performances which are characterized by an emphasis on "specified anatomical areas" or "specified sexual activities"; or

..

(3) employees who, as part of their employment, regularly expose to patrons "specified anatomical areas." and

which is not customarily open to the general public during such features because it excludes minors by reason of age.

Id. And:

An adult theater is a theater which regularly features one or more of the following:

...

(2) live performances characterized by an emphasis on "specified anatomical areas" or "specified sexual activities", and

which is not customarily open to the general public during such features because it excludes minors by reason of age.

Id.

For purposes of this appeal, the following two definitions are pivotal:

"specified sexual activities" are: (i) human genitals in a state of sexual stimulation or arousal; (ii) actual or simulated acts of human masturbation, sexual intercourse or sodomy; or (iii) fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast.

"Specified anatomical areas" are: (i) less than completely and opaquely concealed: (a) human genitals, pubic region, (b) human buttock, anus, or (c) female breast below a point immediately above the top of the areola; or (ii) human male genitals in a discernibly turgid state, even if completely and opaquely concealed.

Id. (emphasis added).

Based upon these definitions, the Zoning Amendment regulates the locations at which adult establishments may operate. In addition to the general ban on commercial establishments in residentially-zoned areas of New York City, the Amendment completely forbids adult establishments from operating in certain other specified areas of the city. See Zoning Amendment, §§ 32-01, 42-01. Moreover, in those areas where adult establishments are permitted to locate, the establishments, subject to certain exceptions, may not be located within 500 feet of any school, day care center, or house of worship, nor within 500 feet of the edge of most residential areas. See id. In addition, to prevent concentration of adult establishments, the Zoning Amendment generally provides that no adult establishments may be located within 500 feet of any other adult establishment. See id. A one-year transition period (with the possibility of additional extensions of time) is provided for non-conforming adult establishments existing at the time of enactment of the Zoning Amendment.

On October 10, 1996, the plaintiffs-appellants filed a complaint alleging that the Zoning Amendment violated the Equal Protection Clause and the First Amendment, and sought injunctive and declaratory relief on that basis. The complaint alleged that Buzzetti's cabaret, Cozy Cabin, which regularly features barechested female dancers, would be economically unable to relocate as required by the Zoning...

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