City of NY v. Les Hommes
| Decision Date | 20 December 1999 |
| Citation | 94 N.Y.2d 267,702 N.Y.S.2d 576,724 N.E.2d 368 |
| Parties | CITY OF NEW YORK et al., Respondents, v. LES HOMMES et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York City (Herald Price Fahringer and Erica T. Dubno of counsel), for appellants.
Michael D. Hess, Corporation Counsel of New York City (Grace Goodman and Larry A. Sonnenshein of counsel), for respondents.
In Stringfellow's of N. Y. v City of New York (91 NY2d 382), we held that New York City's amended zoning resolution regulating adult establishments did not violate their constitutional rights of free expression. This case arises out of New York City's enforcement of that zoning resolution. The issue is whether the courts below employed the proper definition of "stock" as used in the City's administrative guidelines interpreting the zoning resolution. We conclude that the lower courts' interpretation of "stock" included considerations beyond what the City's guidelines provide and reverse.
The City commenced this action against Les Hommes, a Manhattan book and video store catering to the gay male community, and its owner to abate an alleged nuisance based on a violation of its zoning resolution (see, Administrative Code of City of NY § 7-703 [k]; § 7-714). Under that resolution, in order to qualify as an "adult establishment" a "substantial portion" of the business must include, as relevant here, an "adult book store * * * adult theater, or other adult commercial establishment or any combination thereof" (Amended Zoning Resolution of City of NY § 12-10 [Definition of "Adult Establishment"]). To qualify as an "adult book store," a business must have a "substantial portion" of its "stock-in-trade" in, among other things, printed matter or video representations depicting "specified sexual activities" or "specified anatomical areas" as those are defined in the resolution (id.).
The City's zoning resolution further directs that in determining whether a book store has reached the "substantial portion" threshold, the following factors "shall be considered": "(1) the amount of such [adult] 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" (id. [italics in original]). In response to an inquiry as to what constitutes a "substantial portion," the City Department of Buildings issued Operations Policy and Procedure Notice (OPPN) No. 4/98, and several weeks later superseded it with OPPN No. 6/98. Both imposed similar guidelines "to clarify the meaning of the phrase `substantial portion'" (Dept of Buildings, Operations Policy and Procedure Notice No. 6/98, Aug. 13, 1998). With respect to "adult establishments" generally, if "at least 40 percent of the floor and cellar area that is accessible to customers [is] available for adult" use, then a "substantial portion" of the business is devoted to adult use within the zoning resolution. In any event, if "10,000 or more square feet of a commercial establishment * * * is occupied by an adult use, the commercial establishment is deemed to be an `adult establishment' regardless of the overall size of the establishment" (id.).
With regard to book stores particularly, "[i]f at least 40 percent of the book store's total stock accessible or available (`accessible') for sale or rent to customers is comprised of adult materials, then the book store has a `substantial portion' of its stock in adult materials" (id.). Furthermore, "[a]n establishment also includes an adult book store if 40 percent of the establishment's floor area and cellar space accessible to customers contains stock in adult materials" (id.).
The City's zoning resolution became enforceable on July 28, 1998, when the United States Supreme Court denied an application for a stay in a related case, ending a series of stays that had been in effect to that date (see, Amsterdam Video v City of New York, 146 F3d 99 [2d Cir], request for stay denied 524 US 966, cert denied 525 US 1067). Shortly thereafter, the City brought this action by order to show cause and sought a preliminary injunction, enjoining Les Hommes from using the premises as an "adult establishment."
After several days of hearings involving attempts by Les Hommes to comply with the zoning resolution, Supreme Court refused to grant a preliminary injunction. The court determined that with regard to its front room, Les Hommes had increased its stock of nonadult videos to comply with the 60:40 formula. With regard to the back room, which comprised rows of video booths with closing doors as well as two mini-theater areas with movie screens and viewing areas, the court determined that the City had met its burden of establishing that the video booths were showing adult videos, but that the exhibition of nonadult videos in the mini-theaters "ha[d] been confirmed by city inspectors" (City of New York v Les Hommes, order on motion for preliminary injunction, slip opn, at 22, index No. 402704/98 [with two related actions Nos. 402702/98, 402703/98] [Aug. 28, 1998]). Although the court was concerned the movies shown in the mini-theaters "could change overnight," the "potential of recidivism alone" did not mean that the City had met its burden of proving the need for a preliminary injunction.
The case then proceeded to trial on the issue of a permanent injunction. After several additional days of testimony, the court's findings of fact regarding the amount of stock dedicated to adult use remained the same. It determined that only 24% of Les Hommes's stock consisted of adult videos. However, several considerations, in the court's view, compelled the conclusion that Les Hommes was an "adult establishment." Regarding...
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