NYC’s “Adult Establishment” Regulation Blocked in First Amendment Case Brought By NYC Strip Clubs
By Arthur S. Leonard. This piece appears in the October edition of LeGaL’s LGBT Law Notes. Subscribe!
Continuing litigation efforts that date back a quarter of a century, a group of “gentlemen’s cabarets” (which the court alternatively describes as “strip clubs”) and adult bookstores located in Manhattan have brought suit to challenge the constitutionality of 2001 Amendments to the NYC Zoning Resolution as applied to “adult establishments.” Numerous prior assaults on this measure, first passed during the Giuliani Administration in an attempt by the City to sharply reduce the number of adult establishments and to relocate them away from residential districts or close proximity to religious institutions, schools and other places where minors tend to congregate, were largely unsuccessful once they proceeded to the appellate level. Surprisingly, however, given the City’s earnest attempts to beat back all challenges, U.S. District Judge William H. Pauley III relates that the City has not actively enforced the Resolution for eighteen years — effectively since the end of the Giuliani Administration. Mayors Bloomberg and De Blasio turned their attentions elsewhere. But the plaintiffs are concerned with the measure still on the books and the possibility it might be enforced against them in the future — thus this lawsuit. 725 Eatery Corp. d/b/a “Lace” v. City of New York, 2019 WL 4744218, 2019 U.S. Dist. LEXIS 169873 (S.D.N.Y., Sept. 30, 2019).
In this ruling, Judge Pauley grants the plaintiffs’ motion for a preliminary injunction against enforcement of the measure while the litigation goes forward on the merits. This is in some sense largely symbolic, in light of the City’s prolonged failure to enforce the measure.
The list of counsel accompanying the opinion goes on for two pages, and the judge mentions that in connection with the pending motions, “the parties have offered a Homeric record of affidavits, documentary evidence, and stipulations.” Most significant among the objections, perhaps, is that the Resolution was purportedly justified by a 1995 study of ‘secondary effects’ attributable to the presence of adult establishments, especially when several were located close together. The reality is that, as a result of early enforcement efforts during the Giuliani Administration together with economic, residential and commercial development activity in the City over the past twenty years, the studies are clearly out-of-date and no longer easily support the Council’s conclusion that the rather drastic restrictions on the siting of adult establishments is still necessary in terms of public order and impact on property values. Enforcement under Giuliani reduced the number of adult establishments and led to many of them significantly modifying their activities to try to avoid being labeled as adult establishments.
As Judge Pauley explains: “Tracing its origins to the City’s early 1990s crusade against adult entertainment businesses, this litigation has been ensnared in a time warp for a quarter century. During that interval, related challenges to the City’s Zoning Resolution have sojourned through various levels of the state and federal courts.” A major portion of the opinion is devoted to reciting in great detail the history of that litigation, from the initial 1995 enactment through the consequential 2001 amendments and a series of judicial decisions which culminated in a 2017 ruling by the New York Court of Appeals holding that the most recent version of the measure is constitutional, which was stayed until the Supreme Court denied review early in 2018. For the People Theatres of N.Y., Inc. v. City of New York, 29 N.Y.3d 340, 57 N.Y.S.2d 69, 79 N.E.3d 461 (N.Y. 2017).
This new law suit was brought by Manhattan establishments that would not be considered “adult establishments” under the 1995 Regulation (which was construed by the courts to exempt establishments that devoted less than 40% of their space or stock to adult uses) but would be considered “adult establishments” under the 2001 amendments (which broadened coverage to deal with alleged “sham” reconfigurations that the City claimed had resulted in adult establishments continuing to operate while evading coverage). In this case, the plaintiffs alleged deprivations of their 1st and 14th Amendment rights, arguing that if the 2001 Amendment were actively enforced, they “would decimate — and have already dramatically reduced — adult-oriented expression.” The plaintiffs pointed out, restricting themselves to Manhattan numbers, that “the fifty-seven adult eating or drinking establishments existing at the time the City adopted the 2001 Amendments have now been culled to as few as twenty such establishments. And for their part, the bookstore plaintiffs claim that of the roughly forty adult bookstores with booths that existed at the time of the 2001 Amendments, only twenty to twenty-five bookstores currently exist.” They also pointed out that of these bookstores, virtually none are located in “permissible areas” under the 2001 Amendments. The bookstore plaintiffs also pointed out that if the City were to actively enforce the 2001 rules, there would be very few places in the City, much less Manhattan, where such businesses could operate, essentially reduced to “undeveloped areas unsuitable for retail commercial enterprises, such as areas designated for amusement parks or heavy industry or areas containing toxic waste.” They also noted yet again that the study of “secondary effects” conducted by the City prior to enactment of the 1995 measure has never been updated, never been validated in light of the 40% rule, and had addressed a Cityscape radically different from what exists today.
In deciding whether to grant a preliminary injunction — and noting that the City is not actively enforcing the current regulations — the court addressed several crucial factors: whether enforcement would inflict an irreparable injury on the plaintiffs, the likelihood the plaintiffs would succeed on their constitutional arguments, the balance of hardship on the plaintiffs and the City, and the Public Interest.
First, Judge Pauley concluded, “assuming that the 2001 Amendments — which purportedly impose a direct limitation on speech — violate the Constitution, Plaintiffs have demonstrated irreparable harm.” This conclusion was based on many court opinions finding that monetary damages are insufficient to compensate somebody for a loss of their constitutional rights.
Turning to likelihood of success on the merits, the judge found that the weak link in the defendants’ opposition was the reduction of the number of locations where adult establishments could operate if the 2001 Regulations were enforced. Precedents require that any regulation of adult uses must, because of its impact on freedom of speech, leave “reasonable alternative channels” for the speech to take place and be heard. In other words, the zoning rules must allow enough appropriate locations so that adult businesses can operate and members of the public can access their goods and services. “On this preliminary record,” wrote Pauley, “this Court is skeptical that the 2001 Amendments leave open sufficient alternative avenues of communication. With respect to the outer boroughs, the DCP [Department of Consumer Protection] generated a map for each borough identifying the areas allowing and prohibiting adult establishments as of October 31, 2019. . . . Compared to the maps the DCP created in connection with the 1995 Regulations, the 2019 maps appear to offer slightly less available space for adult entertainment. But the City’s maps do not seem to indicate how the amount of available land would be affected by the requirement that adult establishments be located at least 500 feet from sensitive receptors or other adult establishments.” After a critical analysis of the evidence presented, Pauley concluded that “plaintiffs have sufficiently demonstrated at this stage that the enforcement of the 2001 Amendments will deny them adequate alternative channels to offer their adult expression.”
Finally, the court determined “that the balance of hardships weighs in favor of Plaintiffs, and the issuance of preliminary injunctive relief would not disserve the public interest.” The plaintiffs submitted affidavits showing that enforcement would cause them to lose their businesses, breaching contracts and leases, having to lay off employees, and suffering the financial and time costs of relocation. Furthermore, since the City has not been actively enforcing these rules for eighteen years, according to the court, a preliminary injunction would not result in any harm to the City. “While this Court credits Defendants’ contention that the 2001 Amendments are designed to abate the pernicious secondary effects of adult establishments,” wrote Pauley, “it also recognizes that the City ‘does not have an interest in the enforcement of an unconstitutional law.’”
Pauley’s concluding remarks leave little doubt about his skepticism about the further need for the adult zoning rules as last amended in 2001. “The adult-use regulations that are the subject of these now-revived constitutional challenges are a throwback to a bygone era,” he wrote. “The City’s landscape has transformed dramatically since Defendants last studied the secondary effects of adult establishments twenty-five years ago. As Proust might say, the ‘reality that [the City] had known no longer existed,’ and ‘houses, roads, avenues are as fugitive, alas, as the years,’” quoting from Remembrance of Things Past (1913). But, the judge was careful to caution that this was not a final ruling on the merits, and that issuing the preliminary injunction “says nothing about whether Plaintiffs will in fact succeed on the merits of their claims.” He set a status conference for October 31, and directed the parties to file a “joint status report” by October 24 “detailing their respective positions on how to proceed with the balance of this action.” He also directed that they confer on a discover plan as the case moves forward. Of course, in light of the passage of time and the changes in the City, what would make sense would be for the City to negotiate a settlement that would involve substantial revisions to the adult-use zoning provisions to reflect the changed situation.