For the People Theatres v. City of New York
| Decision Date | 15 December 2005 |
| Parties | FOR THE PEOPLE THEATRES OF N.Y., INC., Doing Business as Fair Theatre, et al., Appellants, v. CITY OF NEW YORK et al., Respondents. Ten's Cabaret, Inc., Formerly Known as Stringfellow's of New York, Ltd., et al., Appellants, v. City Of New York et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Alonso, Andalkar & Kahn, P.C., New York City (Mark J. Alonso, Jaymee Kahn and Pritina Bhavsar of counsel), for Ten's Cabaret, Ltd., appellant.
Mehler & Buscemi, New York City (Martin P. Mehler of counsel), for Pussycat Lounge, Inc. and others, appellants.
Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner, Robin Binder and Elizabeth S. Natrella of counsel), for respondents.
The issue on this appeal is whether New York City's adult use zoning regulations, as amended in 2001, serve a public purpose other than censorship and therefore do not infringe upon plaintiffs' rights of free speech under the federal and state constitutions. We conclude that, on this record, a question of fact exists, requiring further proceedings in Supreme Court.
As was the case when we last reviewed adult use zoning regulations adopted by the City, "[t]he `adult' establishments at the center of this controversy offer various forms of sexual expression," and include "bookstores, theaters, stores dealing in videotaped material and places of live entertainment" (Stringfellow's of N.Y. v. City of New York, 91 N.Y.2d 382, 390, 671 N.Y.S.2d 406, 694 N.E.2d 407 [1998]). This appeal travels to us in the slipstream of an extensive history, which informs the City's rationale for the amended regulations challenged by plaintiffs.
In 1977, the City Planning Commission (CPC) concluded that adult entertainment establishments negatively affected the city's communities. At that time, there was no zoning distinction between adult entertainment businesses and other, nonadult operations. The CPC therefore proposed new zoning regulations to identify and restrict the location of adult entertainment businesses in order to ameliorate their harmful social effects. Ultimately, however, the CPC's proposal foundered on worries about the proposed regulations' scope, and fears that they would only prompt adult businesses to relocate.
Although local officials throughout the five boroughs, acting on their own, closed adult businesses, the number of these establishments had mushroomed by 1993. Many set up shop in residential areas. These circumstances caused the Department of City Planning (DCP) to examine the negative social consequences of adult establishments. The DCP Study focused on three types of businesses offering sexually explicit materials or entertainment: adult or triple-X book and video stores, which often provide "peep" booths for on-premises viewing; topless/nude bars or strip clubs; and adult theaters, which offer movies or live entertainment. The DCP's "Adult Entertainment Study," dated September 1994, included a description of how and where these businesses operated in the city; a review of trends in the growth and development of adult businesses; a survey of adult entertainment studies performed elsewhere and adult use zoning regulations adopted in other communities; a review of previous studies and reports on adult businesses in the city; and DCP's own survey of the impact that isolated adult businesses had on several city communities. Based on these sources, the 1994 DCP Study concluded that other cities had documented numerous "negative secondary impacts" from adult businesses, including "increased crime rates, depreciation of property values, deterioration of community character and quality of urban life"; that adult businesses had proliferated in the city in the previous 10 years; that these businesses tended to cluster; that real estate agents perceived that adult businesses lowered nearby property values; and that adult businesses generally used large, illuminated, sexually graphic signs, which might expose minors to sexual images. In summary, the 1994 DCP Study linked these adult businesses, particularly in concentration, to adverse secondary effects in the communities in which they were located, and recommended regulating them more closely than other commercial uses.
Subsequently, the DCP applied to the CPC for an amendment to the City's Zoning Resolution to approve regulations governing "adult establishments." In its September 1995 Report approving the DCP's application and the regulations, the CPC observed that "[a]s a general matter, `adult establishments' are intended to be only those establishments similar in nature to the types of enterprises described and studied in the DCP Study, namely book and video stores, theaters, eating or drinking establishments and other commercial enterprises with a predominant, on-going focus on sexually explicit materials or activities" (emphasis added). The 1995 CPC Report pointed out that the regulations were tailored to cover "this limited range of establishments," and so were designed to exclude legitimate theatrical performances and films including nudity or having a sexual theme ; bookstores that focus on, for example, gay and lesbian themes, but which carry a stock-in-trade covering a wide range of topics (e.g., gay adoptions, biographies by and about prominent gay people, poetry and literature with gay themes, etc.) in addition to gay and lesbian erotica; general interest bookstores, such as Barnes & Noble, with a small portion of stock devoted to erotica; and art galleries displaying sexually explicit artwork.
In October 1995, the City Council adopted these regulations, which featured locational restrictions and anti-concentration provisions designed to shield the city's residential neighborhoods and the facilities and commercial areas that serve them from the negative secondary effects of adult uses. Specifically, the 1995 Ordinance barred adult businesses from residential zones, as well as from many commercial and manufacturing areas; restricted adult businesses' locations in relation to residential areas, schools, day care centers, houses of worship and each other; and limited their maximum size to 10,000 square feet.
The 1995 Ordinance defined "adult establishment" as follows: "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" (Amended Zoning Resolution § 12-10 [emphasis added]). An "adult book store" was defined as having 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 terms were also defined in the 1995 Ordinance (id.). An "adult eating or drinking establishment" was defined as an eating or drinking establishment "which regularly features" live performances or movies "characterized by an emphasis on" "specified sexual activities" or "specified anatomical areas," or whose employees regularly expose "specified anatomical areas" to patrons as part of their employment, and which excludes minors (id.). Similarly, an "adult theater" was defined as a theater "which regularly features" movies or live performances "characterized by an emphasis on" "specified sexual activities" or "specified anatomical areas," and which excludes minors (id.).
The 1995 CPC Report discussed the terms "substantial," "which regularly features" and "characterized by an emphasis on" in the context of its efforts to craft regulations that were both broad enough to cover the kinds of establishments studied in the 1994 DCP Study — "book and video stores, theaters, eating or drinking establishments and other commercial enterprises with a predominant, on-going focus on sexually explicit materials or activities" — and narrow enough to exclude "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" or "establishments which offer adult entertainment on an occasional basis, such as a monthly live performance or a nightly midnight showing at a movie theater." Similarly, the regulations were targeted at those eating and drinking establishments where "adult entertainment [was] a principal form of entertainment at the establishment," and at those theaters where "adult entertainment [was] the principal purpose of the theater showing the adult material." In other words, it is not the case, as the dissent contends, that the City in 1995 intended only "to regulate businesses that devoted a substantial portion of their operations to adult entertainment" or "set out to regulate only businesses that devoted a `substantial portion' of their space to adult entertainment" (dissenting op at 85, 86). The City intended to regulate businesses with a "predominant, on-going focus on sexually explicit materials or activities," as it was the nature or character of these kinds of enterprises, not the amount of floor area or the percentage of inventory devoted to adult uses, that created negative secondary effects. The qualifiers "substantial,"1 "which regularly features" and "characterized by an emphasis on" were intended to make sure that the 1995 Ordinance did not inadvertently sweep too broadly.
Accordingly, the 1995 Ordinance set forth factors determinative of whether a "substantial portion" of a business was "adult":
"(1) the amount of floor area and cellar space accessible to customers and allocated to...
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