City of New York v. Show World, Inc.

• Decision Date: 28 August 1998
• Citation: 683 N.Y.S.2d 376,1998 WL 813421,178 Misc. 2d 812
• Parties: , 1998 N.Y. Slip Op. 98,631 CITY OF NEW YORK et al., Plaintiffs, v. SHOW WORLD, INC., et al., Defendants. City of New York et al., Plaintiffs, v. NRS XXX Video et al., Defendants. City of New York et al., Plaintiffs, v. Les Hommes et al., Defendants.
• Court: New York Supreme Court

Page 376

683 N.Y.S.2d 376

178 Misc.2d 812, 1998 N.Y. Slip Op. 98,631

CITY OF NEW YORK et al., Plaintiffs, v.SHOW WORLD, INC., et al., Defendants.

City of New York et al., Plaintiffs, v.NRS XXX Video et al., Defendants.

City of New York et al., Plaintiffs, v.Les Hommes et al., Defendants.

Supreme Court, New York County.

Aug. 28, 1998.

Michael D. Hess, Corporation Counsel of New York City (Daniel S. Connolly, Gabriel Taussig, Virginia Waters and Kerri A. Devine, of counsel), for plaintiffs.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York City(Herald Price Fahringer and Erica T. Dubno, of counsel), for defendants.

STEPHEN G. CRANE, J.

Plaintiffs in each of these actions move for preliminary injunctive relief pursuant to Administrative Code §§ 7-707and26-120andCPLR Article 63.The motions are consolidated for decision herein.

The purpose of these actions is to abate the nuisances each establishment allegedly represents under the amended Zoning Resolution of the City of New York("ZR" or "amended ZR") regulating adult establishments.It was established by stipulation that defendant Show World, NRS Video and Les Hommes are each located within 500 feet of specified zoning districts.If they are adult establishments within the meaning of ZR 12-10, they would be in violation of ZR32-01(b).Thus, they would be susceptible to treatment as nuisances under the Nuisance Abatement Law, Administrative Code § 7-701 et seq.(hereafter "AC") because any building "wherein there exists or is occurring a violation of the zoning resolution" is defined as a public nuisance.Id. at § 7-703(k).

In these actions for permanent injunctions (AC§ 7-706), plaintiffs presented orders to show cause on July 31, 1998, in these and three other actions seeking ex parte temporary closing orders (AC§ 7-709) and temporary restraining orders (AC§ 7-710) pending determination of these motions for preliminary injunctions(AC§ 7-707).Of the six actions presented on July 31, 1998, three were subjected to temporary closing orders issued after hearings began concerning all six premises, and the court earlier granted preliminary injunctions in those actions.¹Hearings were held on August 6, 7, 10, 11 and 14, 1998.The parties filed post hearing memoranda and reply memoranda, and they engaged in oral argument on August 25, 1998.

With respect to these remaining three actions, the hearings delved into the history of the operations as adult establishments and into their efforts to abate or to conform to the ZR by reconfiguring their space and reorganizing their stock.The issue that controls the decision of these motions for preliminary injunctions distills, very simply, to whether the defendants have succeeded in their abatement efforts.This, in turn, requires this court to construe the ZR to determine what standards are applicable in defining an "adult establishment" as described in ZR 12-10:

An "adult establishment" is a commercial establishment where a "substantial portion" of the establishment includes an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof....[that carries on certain activities or stocks of reading or viewing material characterized by a defined emphasis].

For an adult book store, such as NRS and Les Hommes are alleged to include, this stock must constitute a "substantial portion" of its stock-in-trade.Other adult establishments must "regularly feature" the specified performances, live or by some form of visual or photographic reproduction.

ZR 12-10 goes on to prescribe:

For the purpose of determining whether a "substantial portion" of an establishment includes an adult bookstore, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or combination thereof, the following factors shall be considered: (1) the amount of floor area and cellar space accessible to customers and allocated to such uses; and (2) the amount of floor area and cellar space accessible to customers and allocated to such uses as compared to the total floor area and cellar space accessible to customers in the establishment.

For the purpose of determining whether a bookstore has a "substantial portion" of its stock in materials defined in paragraphs (a)(1) or (a)(2) hereof, the following factors shall be considered: (1) the amount of such stock accessible to customers as compared to the total stock accessible to customers in the establishment; and (2) the amount of floor area and cellar space accessible to customers containing such stock; and (3) the amount of floor area and cellar space accessible to customers containing such stock as compared to the total floor area and cellar space accessible to customers in the establishment.

Defendants argue that they are not adult establishments because less than 40% of their stock as a book store and less than 40% of the floor area accessible to customers in all three premises is devoted to adult uses as defined in ZR§ 12-10.Plaintiffs, on the other hand, contend that there is no mechanical ratio of 60:40 that determines whether an enterprise is an adult establishment and that the three premises at bar, even if they have complied with this ratio, can easily revert to adult uses in the non-adult portions.They urge that the types of changes made by Show World, NRS and Les Hommes are superficial and unreliable and that the court should look at all factors of the operations including revenues and patronage, before determining the question of "substantial portion."

We must, therefore, examine the legislative history bearing on the phrase "substantial portion" and look to other indications that were brought out during the hearings to determine how to interpret this legislative language.In doing this, the court keeps in mind that the plaintiffs shoulder the burden of proof.They have accepted a standard of clear and convincing evidence for this burden.See, Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247("an abiding conviction that the truth of its factual contentions are 'highly probable.' ");Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323("The standard serves to allocate the risk of error between litigants and to indicate the relative importance attached to the ultimate decision.") and 425, 99 S.Ct. 1804, 60 L.Ed.2d 323(an intermediate standard between preponderance and beyond a reasonable doubt).The court is also mindful of the First Amendment implications of these motions and the need for heightened protection of the defendants' rights to free expression.Town of Islip v. Caviglia, 73 N.Y.2d 544, 556, 542 N.Y.S.2d 139, 540 N.E.2d 215;see also566, 542 N.Y.S.2d 139, 540 N.E.2d 215(Titone, J., dissenting);People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 558, 510 N.Y.S.2d 844, 503 N.E.2d 492;cf., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661.

In addition, the court needs to consider the effect of the plaintiffs' posture in federal court before United States District JudgeMiriam Goldman Cedarbaum regarding the interpretation of this "substantial portion" language.

Legislative History

Judge Titone in Stringfellow's of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 391-392, and 397-399, 671 N.Y.S.2d 406, 694 N.E.2d 407, in upholding the constitutionality of the ZR, discussed its genesis and the findings to which it was addressed.These included the impacts found to be attributable to adult enterprises "including downward pressure on property values and increased crime rate in areas where adult uses are most concentrated."Part of the background of this amendment to the ZR was discussed by the City Planning Commission in deciding the application of the Department of City Planning("CPC") and the New York City Council Land Use Committee and approving the amended ZR on September 18, 1995, (which ultimately became effective October 25, 1995).²As pertinent here the CPC expressed concern for the clarity of certain phrases in the amended ZR.

Focusing on the "substantial portion" phrase that concerns us at bar, the CPC recited the floor area formula above quoted from § 12-10 of the amended ZR.It then opined:

As a general guideline, the Commission believes that an establishment would need to have at least 40 percent of its accessible floor area used for adult purposes to make it similar to the establishments studied ... and thus be an "adult establishment" or "adult bookstore."However, there may be exceptions to this general guideline.A disproportionately large amount of adult materials, as compared to total stock, moved into a smaller amount of floor area should allow an establishment to be deemed an adult establishment.In addition, the Commission believes that 10,000 or more square feet of commercial space occupied by adult uses or adult materials is "substantial" regardless of the overall size of an establishment.These factors and the approach make it clear that the regulations are not intended to cover general interest book or video stores with a section of adult materials that is modest in scale as compared to the overall size of the establishment.

The CPC went on to suggest that other factors "such as the nature or prominence of display of adult materials" would invest in the enforcers an undesirable level of discretion.

The CPC was also concerned with the phrase "regularly features" in the definitions of adult eating or drinking establishment and adult theater.It clarified that the intent was not to cover performances or films displaying incidental nudity but, rather, to apply to emporia having "adult entertainment on a frequent, on-going basis" as opposed to an occasional basis.It gave an example of the latter a "monthly live performance or a nightly midnight showing at a movie theater."And, for eating or drinking establishments and theaters, it...