Adult Use Amendments Held Unconstitutional

With this constitutional framework as background, New York City's Department of City Planning (DCP), in 1993, prepared a report surveying existing studies on the impact of adult entertainment establishments and regulation in other localities, and describing adult entertainment businesses in New York together with their impact on New York City communities. Based on the DCP report, the City Council, in 1995, amended the city's zoning ordinance to prohibit extension or enlargement of existing adult establishments, and to ban adult establishments from residential districts, and from locations within 500 feet of schools, churches, and other adult establishments. The City Planning Commission issued a report defining an adult establishment or adult bookstore an establishment with “at least 40% of its accessible floor area used for adult purposes.”

When more than 100 owners and operators of adult establishments challenged the 1995 amendments, the Court of Appeals upheld the amendments in Stringfellow's of New York, Ltd. v. City of New York, 91 NY2d 382 (1998). The court held that the resolution was not unconstitutionally vague, and that the 1993 DCP report served as an adequate foundation for the 1995 amendment. In particular, the Court of Appeals emphasized that the amendment was a narrow solution designed to deal with the secondary effects of adult establishments.

In response to the Stringfellow's decision, many owners of adult establishments reconfigured their establishments to assure that only 40% of their floor area contained adult material. When the city challenged these reconfigurations, arguing that the establishments were in “sham” compliance with the 40% requirement, the Court of Appeals rejected the challenge, essentially holding the city bound by its own 40% guideline. City of New York v. Les Hommes, 94 NY2d 267 (1999). The City then enacted amendments to the Zoning Resolution, defining adult establishments more broadly and abandoning the 40% rule. These 2001 amendments, however, were not accompanied by any new studies.

Challenging the 2001 Amendments

In Ten's Cabaret, owners of adult establishments challenged the constitutionality of the 2001 amendments. In particular, they argued that the city acted without any evidence to establish that establishments in compliance with the 40% rule generated any “secondary effects” and that the city therefore lacked any rational basis for prohibiting establishments that complied with the 40% standard. The city, by contrast, relied on the 1993 studies as a basis for the 2001 amendments.

In holding the 2001 ordinance unconstitutional, Justice York held that because the 1993 report had not studied establishments in compliance with the 60/40 rule, the 1993 report could not be used to establish the secondary effects associated with these establishments. As a result, the city could not establish that the ordinance was addressed to concerns other than speech. The court rejected the city's argument that the 2001 amendments were intended largely as a clarification of the 1995 resolution. Moreover, even if the amendments were merely a clarification, the court held that the city had not demonstrated that the 1995 ordinance had not remedies the secondary effects identified in the 1993 report.

Whether Justice York's determination will be upheld on appeal remains an open question. As a matter of federal constitutional law, the United States Supreme Court's opinion in City of Los Angeles v. Alameda Books, 535 US 425 (2002) lends support to the city's position. In that case, a 5-4 majority of the Court held that the City of Los Angeles could justify an amendment to its regulation of adult establishments by reference to a study conducted before enactment of the original ordinance. In that case, as in Ten's Cabaret, the city enacted the amendment to close a “loophole” in the original resolution. The original Los Angeles ordinance had prohibited establishment of an adult entertainment business within 1000 feet of the exterior wall of another such business. Owners had responded by establishing multiple establishments within a single building. The city amended its ordinance to prohibit more than one adult entertainment business within the same building, relying on the same study used to justify the original ordinance. In holding that challengers were not entitled to summary judgment invalidating the amendment, Justice O'Connor, writing for a plurality of four, held that the city could reasonably rely on the prior study to establish that a concentration of adult operations attracts crime, thus demonstrating that the amendment would promote the city's interest in fighting crime. Similar analysis would enable a court to uphold New York's 2001 amendments. Moreover, so long as the First Amendment permits a municipality to rely on studies conducted in other communities, it is difficult to understand why the same Amendment would preclude reliance on past studies conducted in the same municipality.

Nevertheless, New York appellate courts might construe the state constitution's free speech clause more broadly that the federal constitution's first amendment, or they might, as Justice York did, construe the Alameda case narrowly to make it inapplicable to the facts in Ten's Cabaret. A variety of adult establishment owners — and city officials – -await appellate clarification.

Ten's Cabaret, Inc. v. City of New York, decided last month (NYLJ 9/16/03, p. 18, col. 1), represents the latest skirmish in the long-term battle between the City of New York and owners of adult establishments over the city's efforts to regulate the location (and ultimately the number) of adult uses in the city. In Ten's Cabaret, Justice York of New York County Supreme Court held that the city's 2001 amendment to its zoning resolution — enacted to counteract evasion of the provisions in the then-existing ordinance — failed to pass constitutional muster because the city had not conducted any studies to demonstrate the need for the amendment.

In City of Renton v. Playtime Theatres , 475 US 41 (1986), the United States Supreme Court developed the constitutional framework for the regulation of adult uses. The City of Renton had banned adult motion picture theaters from locating within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. When purchasers of two theaters sought to show adult movies, they brought an action challenging the city's ordinance as an unconstitutional restriction of speech. In upholding the ordinance, the Supreme Court started by noting that regulations aimed at regulating the content of speech are presumptively unconstitutional. If, however, a regulation is justified without regard to the content of the speech, then the regulation is content-neutral, and the presumption of unconstitutionality does not obtain. The Court emphasized that the city was entitled to regulate adult motion pictures in order to combat the negative “secondary effects” that accompany such theaters — crime, neighborhood blight, etc. And the Court held that the city did not have to conduct studies of the impact of adult theaters in Renton itself; experiences in other cities would suffice. 475 US at 51-52.

The DCP's Report

With this constitutional framework as background, New York City's Department of City Planning (DCP), in 1993, prepared a report surveying existing studies on the impact of adult entertainment establishments and regulation in other localities, and describing adult entertainment businesses in New York together with their impact on New York City communities. Based on the DCP report, the City Council, in 1995, amended the city's zoning ordinance to prohibit extension or enlargement of existing adult establishments, and to ban adult establishments from residential districts, and from locations within 500 feet of schools, churches, and other adult establishments. The City Planning Commission issued a report defining an adult establishment or adult bookstore an establishment with “at least 40% of its accessible floor area used for adult purposes.”

When more than 100 owners and operators of adult establishments challenged the 1995 amendments, the Court of Appeals upheld the amendments in Stringfellow's of New York, Ltd. v. City of New York , 91 NY2d 382 (1998). The court held that the resolution was not unconstitutionally vague, and that the 1993 DCP report served as an adequate foundation for the 1995 amendment. In particular, the Court of Appeals emphasized that the amendment was a narrow solution designed to deal with the secondary effects of adult establishments.

In response to the Stringfellow's decision, many owners of adult establishments reconfigured their establishments to assure that only 40% of their floor area contained adult material. When the city challenged these reconfigurations, arguing that the establishments were in “sham” compliance with the 40% requirement, the Court of Appeals rejected the challenge, essentially holding the city bound by its own 40% guideline. City of New York v. Les Hommes , 94 NY2d 267 (1999). The City then enacted amendments to the Zoning Resolution, defining adult establishments more broadly and abandoning the 40% rule. These 2001 amendments, however, were not accompanied by any new studies.

Challenging the 2001 Amendments

In Ten's Cabaret, owners of adult establishments challenged the constitutionality of the 2001 amendments. In particular, they argued that the city acted without any evidence to establish that establishments in compliance with the 40% rule generated any “secondary effects” and that the city therefore lacked any rational basis for prohibiting establishments that complied with the 40% standard. The city, by contrast, relied on the 1993 studies as a basis for the 2001 amendments.

In holding the 2001 ordinance unconstitutional, Justice York held that because the 1993 report had not studied establishments in compliance with the 60/40 rule, the 1993 report could not be used to establish the secondary effects associated with these establishments. As a result, the city could not establish that the ordinance was addressed to concerns other than speech. The court rejected the city's argument that the 2001 amendments were intended largely as a clarification of the 1995 resolution. Moreover, even if the amendments were merely a clarification, the court held that the city had not demonstrated that the 1995 ordinance had not remedies the secondary effects identified in the 1993 report.

Whether Justice York's determination will be upheld on appeal remains an open question. As a matter of federal constitutional law, the United States Supreme Court's opinion in City of Los Angeles v. Alameda Books , 535 US 425 (2002) lends support to the city's position. In that case, a 5-4 majority of the Court held that the City of Los Angeles could justify an amendment to its regulation of adult establishments by reference to a study conducted before enactment of the original ordinance. In that case, as in Ten's Cabaret, the city enacted the amendment to close a “loophole” in the original resolution. The original Los Angeles ordinance had prohibited establishment of an adult entertainment business within 1000 feet of the exterior wall of another such business. Owners had responded by establishing multiple establishments within a single building. The city amended its ordinance to prohibit more than one adult entertainment business within the same building, relying on the same study used to justify the original ordinance. In holding that challengers were not entitled to summary judgment invalidating the amendment, Justice O'Connor, writing for a plurality of four, held that the city could reasonably rely on the prior study to establish that a concentration of adult operations attracts crime, thus demonstrating that the amendment would promote the city's interest in fighting crime. Similar analysis would enable a court to uphold New York's 2001 amendments. Moreover, so long as the First Amendment permits a municipality to rely on studies conducted in other communities, it is difficult to understand why the same Amendment would preclude reliance on past studies conducted in the same municipality.

Nevertheless, New York appellate courts might construe the state constitution's free speech clause more broadly that the federal constitution's first amendment, or they might, as Justice York did, construe the Alameda case narrowly to make it inapplicable to the facts in Ten's Cabaret. A variety of adult establishment owners — and city officials – -await appellate clarification.